Spivey v. United States of America

Filing 17

ORDER DENYING MOTION TO AMEND § 2255 MOTION, DENYING MOTION FOR COUNSEL, AND DIRECTING RESPONDENT TO RESPOND. Signed by Judge J. Daniel Breen on 7/13/17. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
BOB SPIVEY,
Petitioner,
v.

No. 1:14-CV-1209-JDB-egb

UNITED STATES OF AMERICA,
Respondent.
____________________________________________________________________________
ORDER DENYING MOTION TO AMEND § 2255 MOTION,
DENYING MOTION FOR COUNSEL,
AND
DIRECTING RESPONDENT TO RESPOND
_____________________________________________________________________________
INTRODUCTION
On August 25, 2014, Petitioner, Bob Spivey filed a pro se 28 U.S.C. § 2255 motion to
vacate, set aside, or correct his sentence (“petition”). (Pet., ECF No. 1.) Before the Court is
Spivey’s motion to amend the petition to add a claim for relief under Johnson v. United States,
135 S. Ct. 2551 (2015), and motion for appointment of counsel. (Mo. Amend., ECF No. 13; Mo.
Counsel, ECF No. 16.) For the reasons set forth below, the motions are DENIED. Respondent,
United States of America, is ORDERED to respond to the petition pursuant to the timeframe set
forth below.
RELEVANT BACKGROUND
On August 15, 2011, a federal grand jury, in Case No. 1:11-cr-10064-JDB-1, returned a
one-count indictment against Petitioner, charging him with being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). Assistant Federal Defender Diane Smothers was

appointed to represent him. (Order, Criminal Case (“Cr. Case”), ECF No. 7; Min. Entry, Cr.
Case, ECF No. 9.)
Spivey pleaded guilty on December 1, 2011. (Change of Plea Min. Entry, Cr. Case, ECF
No. 32.)

At sentencing, he was determined to be an armed career criminal subject to a

mandatory minimum sentence of 15 years’ incarceration under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. §§ 924(e)(1), (e)(2)(A). (Presentence Report (“PSR”) at 11, 13.) His
ACCA status was based on three prior convictions for “serious drug offense[s],” namely:
possession of cocaine with intent to deliver .5 grams or more; possession of cocaine/cocaine base
with intent to deliver .5 grams or more, and facilitation of delivery of schedule II over .5 grams.
(Id.) The government moved, pursuant to 18 U.S.C. § 3553, for a departure below the statutory
mandatory minimum and the Court imposed a sentence of 120 months’ incarceration. (Min.
Entry, Cr. Case, ECF No. 44.)
THE PETITION AND REQUEST FOR JOHNSON REVIEW
The defendant filed his habeas petition in August of 2014, raising the sole claim that his
attorney rendered ineffective assistance. (Pet. ECF No. 1 at 4.) He asserts that Attorney
Smothers should have objected at sentencing and on appeal to the use of his facilitation
conviction to enhance his sentence, since “facilitation of sale of cocaine [is] not a controlled
substance offense” for purposes of the ACCA. (Pet., ECF No. 1 at 4) (citing United States v.
Woodruff, 735 F.3d 445 (6th Cir. 2013)).
On June 27, 2016, Petitioner filed a motion for leave to amend his petition to add the
additional claim that enhancement of his sentence under the ACCA was unconstitutional in light
of Johnson, 135 S. Ct. 2551. (Mo. Am., ECF No. 13 at 4.) The Court appointed counsel to

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assist the inmate with his Johnson claim, (Order, Cr. Case, ECF No. 55), and counsel
subsequently filed a notice that he had completed his review. (6/24/16 Notice, Cr. Case.)
On May 8, 2017, Petitioner moved for the appointment of counsel, presumably to aid him
in litigating his ineffective-assistance claim. (Mo. Counsel, ECF No. 16.)
DISCUSSION
The Court determines that Spivey is not entitled to relief under the Supreme Court’s
decision in Johnson and that the appointment of counsel to assist him in litigating his sole habeas
claim is not warranted.
1. Johnson Claim
A prisoner seeking to vacate his sentence under § 2255 “must allege either (1) an error of
constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of
fact or law that was so fundamental as to render the entire proceeding invalid.” Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (internal quotation marks omitted). Petitioner, here,
contends that the Supreme Court’s ruling in Johnson, 135 S. Ct. at 2551, renders the
enhancement of his sentence under the ACCA unconstitutional. The argument is without merit.
Generally, a person convicted of being a felon in possession of a firearm is subject to a
sentence of zero to ten years in prison. 18 U.S.C. § 924(a)(2). Under the ACCA, however, a
person who is convicted of being a felon in possession of a firearm and who has “three previous
convictions . . . for a violent felony or a serious drug offense . . . committed on occasions
different from one another . . . shall be . . . imprisoned [for] not less than fifteen years.” 18
U.S.C. § 924(e)(1).
The ACCA defines “serious drug offense,” in pertinent part, as any “offense under State
law, involving manufacturing, distributing, or possessing with intent to manufacture or
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distribute, a controlled substance . . . for which a maximum term of imprisonment of ten years or
more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). “[V]iolent felony” is defined as “any
crime punishable by imprisonment for a term exceeding one year . . . that (i) has as an element
the use, attempted use, or threatened use of physical force against the person of another; or (ii) is
burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). The
phrase “otherwise involves conduct that presents a serious potential risk of physical injury to
another” is known as the “residual clause.” Johnson, 135 S. Ct. at 2556.
In Johnson, the Supreme Court held that the residual clause is unconstitutionally void for
vagueness. Id. at 2257. Therefore, an enhanced sentence under the residual clause violates due
process as guaranteed by the Fifth Amendment. Id.

As noted, Spivey was sentenced as an armed career criminal pursuant to the ACCA.

However, his qualifying convictions were for serious drug offenses, not violent felonies. The
ruling in Johnson thus has no application to his sentence. See e.g., United States v. Smith, No.
10-cr-20058, 2015 WL 5729114, at *13 (E.D. Mich. Sept. 30, 2015) (holding that Johnson did
not affect the defendant’s status as an armed career criminal based on his prior serious drug
offenses).
The request for leave to amend the petition to add a claim under Johnson is therefore
DENIED as futile.
2. Appointment of Counsel
The appointment of counsel is mandatory in a § 2255 proceeding when an evidentiary
hearing is required. See Habeas Rule 8(c), Rules Governing § 2255 Proceedings for the United
States District Courts (“If an evidentiary hearing is warranted, the judge must appoint an attorney
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to represent a moving party who qualifies to have counsel appointed under 18 U.S.C. § 3006A.).
Appointment is also “required . . . where the interests of justice or due process so require.” Mira
v. Marshall, 806 F.2d 636, 638 (6th Cir. 1986) (citing 18 U.S.C. § 3006(A)(g)); see also 18
U.S.C. §3006A(a)(2) (“Whenever . . . the court determines that the interests of justice so require,
representation may be provided for any financially eligible person who . . . is seeking relief
under section . . . 2254 . . . of title 28.”). The determination of whether the interests of justice or
due process require the appointment of counsel is left to the sound discretion of the court. Mira,
806 F.2d at 638.
Here, the inmate does not explain why he believes that appointment of counsel is
necessary or warranted. (See Mo. Counsel, ECF No. 16.) He thus has not shown why justice or
due process would require it. In addition, appointment does not appear to be appropriate under
Habeas Rule 8(c), since an evidentiary hearing is probably not necessary on Petitioner’s sole
habeas claim that his attorney was ineffective for failing to challenge the use of his facilitation
conviction as a predicate offense under the ACCA. See Lott v. Coyle, 261 F.3d 594, 609 (6th
Cir. 2001) (a court’s determination of whether counsel was ineffective for failing to predict the
development of the law requires assessment of the law’s clarity, or lack thereof, at the time of
representation).
The motion for appointment of counsel is therefore DENIED without prejudice.
3. Response to Petition
Respondent, United States of America, is ORDERED to file a response to the petition
within twenty-one days from the date of this order. See Habeas Rule 5(a).
Petitioner may, if he chooses, submit a reply to Respondent’s response within twenty-one
days of service. See Rule 5(d).

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IT IS SO ORDERED this 13th day of July 2017.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE

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