Sermon v. United States of America

Filing 21

ORDER denying Motion to Vacate, Set Aside or Correct Sentence (2255); denying 10 Motion to Appoint Counsel; granting 11 Motion to Amend; granting 16 Motion for Extension of Time; and granting 17 Motion to Amend. Signed by Judge Samuel H. Mays, Jr on 03/13/2017. (Mays, Samuel)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION NURI SERMON, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) ) Case No. 13-cv-02808 ORDER Before the Court are six motions. First, on October 20, 2014, Petitioner Nuri Sermon filed an amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (ECF No. 9 (“§ 2255 Mot.”).) The Government has not filed a response to the § 2255 Motion.1 Second, on June 20, 2016, Sermon filed a Motion of Defendant Requesting Appointment of Counsel Pursuant to Title 18 [U.S.C.] § 3006(A) in Light of Recent Supreme Court Decision Johnson v. United States (U.S. 2015). for Counsel”).) 1 (ECF No. 10 (“First Mot. Sermon refers to Johnson v. United States, 135 The Court did not order the Government to specifically respond to the § 2255 Motion. Rules Governing Section 2255 Proceedings for the U.S. District Courts at Rule 5(a) (“§ 2255 Rules”) (stating that respondent “is not required to answer [a § 2255 motion] unless a judge so orders”). S. Ct. 2551 (2015). The Government did not respond to the First Motion for Counsel, and the deadline for doing so has passed. L.R. 7.2(a)(2). Third, on June 20, 2016, Sermon filed a motion seeking to amend the § 2255 Motion. (Mot. Seeking to Amend Johnson v. United States, 135 S. Ct. 2551 (2015), and the Retroactivity of Welch v. United States, [136 S. Ct. 1257] (2016) on Collateral Review of 18 U.S.C. §§ 922(g) & 924(e)(B)(ii) of the Armed Career Criminal Act, to My Existing § 2255 Mot., ECF No. 11 (“Mot. to Amend”).) Motion to Amend, The Government filed a response to the effectively a response arguments, on October 7, 2016. to Sermon’s Johnson (Resp. of U.S. in Opp’n to Def.’s § 2255 Mot., ECF No. 15 (“Johnson Resp.”).) In filings on October 26, 2016, and November 4, 2016, Sermon argues in support of the Motion to Amend based on Johnson. (Pet’r’s Amendment Pursuant to Fed. R. Civ. P. 12 and 15(a), ECF No. 18 (“Sermon Amendment”); Resp. of Pet’r in Opp’n to the U.S. Recommendation of [Defendant’s] § 2255 Motion on Johnson Review, ECF No. 19 (“Sermon Reply”).)2 Fourth, Request an on October Extension of 26, 2016, Time in 2 Sermon filed Responding to a Motion to Government’s Sermon also wrote a letter to the Court largely duplicative of material in the Sermon Amendment. (See generally Letter from Nuri Sermon, ECF No. 20.) 2 Opposition of § 2255 Motion. of Time”).) (ECF No. 16 (“Mot. for Extension The Government did not respond to the Motion for Extension of Time, and the deadline for doing so has passed. L.R. 7.2(a)(2). Fifth, on October 26, 2016, Sermon filed a Motion to Request Permission to Amend/Supplement Pursuant to Federal Rules of Civil Procedure 12 and 15(a). Amend”).) to (ECF No. 17 (“Second Mot. to The Government did not respond to the Second Motion Amend, and the deadline for doing so has passed. L.R. 7.2(a)(2). Sixth, the Sermon Reply contains a request that the Court “re-appoint counsel” (Sermon Reply 1.) for Sermon “with regard to Johnson.” The Court will refer to that request as the “Second Motion for Counsel.” For the following reasons, the First Motion for Counsel and Second Motion for Counsel are DENIED, the First Motion to Amend and Second Motion to Amend are GRANTED, the Motion for Extension of Time is GRANTED, and the § 2255 Motion is DENIED. I. BACKGROUND A. Case No. 09-20395 On September 29, 2009, a federal grand jury returned a onecount indictment against Sermon. 3 (Indictment, ECF No. 1 in 09- 20395.)3 Count 1 charged Sermon, a convicted felon, with possessing a semiautomatic pistol on or about June 29, 2007, in violation of 18 U.S.C. § 922(g). (Id.) On October 25, 2011, Sermon entered into a plea agreement with the Government in which he agreed to plead guilty to Count 1. (Plea Agreement 1, ECF No. 104 in 09-20395 (“Plea Agreement”).) colloquy, the Court accepted Sermon’s plea. Following a plea (Order on Change of Plea, ECF No. 105 in 09-20395.) On December 19, 2011, the U.S. Probation Office submitted a Presentence Investigation Report (“PSR”). (PSR in 09-20395.) The PSR calculated Sermon’s guidelines-sentencing range using the 2011 edition (“U.S.S.G.”). of the U.S. Sentencing Guidelines Manual (Id. ¶ 12.) Sermon’s base offense level was 20. (Id. ¶ 13.) The PSR recommended a two-level increase pursuant to § 2K2.1(b)(4)(A) because the pistol Sermon possessed had been stolen. 14.) Sermon’s adjusted offense level was 22. (Id. ¶¶ 6, (Id. ¶ 18.) The PSR also recommended that Sermon be classified as an armed career criminal under the Armed Career Criminal Act (the “ACCA”), 18 U.S.C. § 924(e). (Id. ¶ 19.) The PSR identified five prior convictions supporting that enhancement. First, on October sentenced 3, 1983, the Shelby County 3 Criminal Court References to “09-20395” are to filings in United States v. Sermon, Case No. 09-20395-SHM-cgc (W.D. Tenn.). 4 Sermon to Second, five on sentenced years May 6, Sermon convictions,4 weapon.5 (Id. ¶ prison 1986, to four in of 35 years which 30.) robbery. (Id. Shelby the for County Criminal Court each of seven with a deadly in were Based prison for on on robbery his ¶ 27.) armed-career-criminal designation, Sermon’s total offense level was 33. (Id. ¶¶ 19, 21; see U.S.S.G. § 4B1.4(b)(3)(B).) Sermon’s criminal-history category was Category V. ¶ 37.) (PSR His recommended guidelines range was 210 to 262 months. (Id. ¶ 72; see U.S.S.G. ch. 5 pt. A.) As an armed career criminal, Sermon’s statutory minimum sentence was 180 months. 18 U.S.C. § 924(e). Sermon objection receive to an was the sentenced on guidelines adjustment for March 23, 2012. calculations was acceptance of that His he only should responsibility. (Position of Def. with Respect to Sentencing Factors ¶ 5, ECF No. 111 in 09-20395 (“Def. Resp. to PSR”).) The Court sustained 4 The Shelby County Criminal Court sentenced Sermon to serve the 35-year terms concurrently. (PSR ¶ 30.) 5 The seven convictions on May 6, 1986, included two additional counts of robbery with a deadly weapon and one count of “[a]ssault to [c]ommit [m]urder, 1st degree.” (Id.) The Government states that these offenses “were not counted separately as predicate offenses [for ACCA purposes] because they were not ‘separate and distinct’” from Sermon’s robbery with a deadly weapon on January 8, 1986. (Johnson Resp. 2 n.1 (citing United States v. Pedigo, 879 F.2d 1315, 1317 (6th Cir. 1989).) 5 that objection and determined that a two-level adjustment for acceptance of responsibility was warranted. Hr’g 12, ECF resulting No. total 116 in offense 09-20395 level was (Tr. of Sentencing (“Sentencing 31. (Id. Tr.”).) at resulting guidelines range was 168 to 210 months. U.S.S.G. ch. 5 pt. A.) of incarceration. 13.) The The (Id.; see The Court sentenced Sermon to 180 months (Sentencing Tr. 28; J. in Criminal Case 2–3, ECF No. 113 in 09-20395.) On April 2, 2012, Sermon filed a Notice of Appeal. No. 115 in 09-20395.) (ECF On February 8, 2013, before the parties had filed briefs, Sermon filed a motion to withdraw his appeal. (Def./Appellant’s Mot. to Withdraw Appeal, ECF No. 32 in 125362.6) The Sixth Circuit granted the motion on February 12, 2013. (Order, ECF No. 33 in 12-5362 (“Sixth Circuit original § Dismissal Order”).) B. On Motion. Case No. 13-02808 October 16, 2013, Sermon filed his 2255 (Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, ECF No. 1.) On July 3, 2014, the Court entered an Order Directing Movant to File an Amended § 2255 Motion. (ECF No. 5.) The order noted that Sermon had filed “an identical copy of his § 2255 Motion, 6 References to “12-5362” are to filings in United States v. Sermon, Case No. 12-5362 (6th Cir.). 6 with a different set of exhibits,” to challenge his conviction on a separate matter. (Id. at 1.) file 2255 an amended § The Court ordered Sermon to motion “address[ing] conviction in Case Number 09-20395.” only (Id. at 2.) [his] On November 17, 2014, Sermon filed the present § 2255 Motion. On June 26, 2015, the U.S. Supreme Court decided Johnson. On June 20, 2016, Sermon filed the Motion to Amend and the First Motion for Counsel. On June 24, 2016, the Court entered an Order Appointing Counsel Pursuant to the Criminal Justice Act. (ECF No. 151 in 09-20395 (“Order Appointing Counsel”).) The Court appointed Christopher Sullivan “[f]or purposes of a Johnson review.” (Id.) On July 2, 2016, Sullivan filed a Notice of Johnson Review. (ECF No. 152 in 09-20395.) Sullivan stated that he had completed his review and that he “[would] not be filing Johnson[.]” anything on behalf of Mr. Sermon pursuant to (Id.) On October 6, 2016, the Court entered an Order Directing United States to Respond. (ECF No. 13 (“Order Directing Gov’t Resp.”).) The order directed the Government to respond to the Motion Amend, to which within seven days. October 7, 2016. (Id.) contained Sermon’s Johnson challenge, The Government filed its response on (Johnson Resp.) 7 On October 26, 2016, Sermon filed the Motion for Extension of Time, the Second Motion to Amend, and the Sermon Amendment. On November 4, 2016, Sermon filed the Sermon Reply. II. SUBSIDIARY MOTIONS A. Clemons Motions for Counsel has filed two motions requesting counsel. First Motion for Counsel was filed on June 20, 2016. appointed counsel on June 24, 2016. The First The The Court Motion for Counsel is DENIED as moot. The Second Motion for Counsel, filed after Sermon’s prior Johnson counsel filed a Notice of Johnson Review, asks the Court to “re-appoint counsel to . . . review § 2255 motion, with regard to Johnson.” [Sermon’s] existing (Sermon Reply 1.) The Government has taken no position on this request. There is proceedings. no constitutional right to counsel in § 2255 See, e.g., Brown v. United States, 20 F. App’x 373, 375 (6th Cir. 2001) (citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)); Keathley v. United States, No. CR 0480335, 2016 WL 7242135, at *2 (E.D. Mich. Dec. 15, 2016) (citing Finley and Brown). The Court has broad discretion in deciding whether to appoint counsel. See, e.g., Childs v. Pellegrin, 822 F.2d 1987). 1382, 1384 (6th Cir. “The decision to appoint counsel for a federal habeas petitioner is within the discretion of the court and is required only where the interests of justice 8 or due process so require.” Mira v. Marshall, 806 F.2d 636, 638 (6th Cir. 1986); see also 18 U.S.C. § 3006A(a)(2)(B) (counsel may be appointed for persons seeking relief under 28 U.S.C. § 2255 who are financially eligible when the court determines “that the interests of justice so require”). “In exercising its discretion, the district court should consider the complexity legal of investigate and the 1994) case, present relevant factors.” Cir. complexity and his of the claims, the case, the petitioner’s along factual ability with any to other Hoggard v. Purkett, 29 F.3d 469, 471 (8th (citations omitted); see also, e.g., Caldwell v. United States, No. CR 08-10029-JDB, 2014 WL 1415137, at *4 (W.D. Tenn. Apr. 14, 2014) (quoting and applying Hoggard).7 Sermon has not demonstrated that appointing counsel at this time is required by the interests of justice or by due process. Appointed claims. counsel has already considered Sermon’s Johnson Sermon disagrees with his counsel’s conclusion, but that does not require appointment of new counsel. assess the merits of Sermon’s Johnson claim. The Court can The Second Motion for Counsel is DENIED. 7 The appointment of counsel is mandatory when an evidentiary hearing is required. Section 2255 Rules at Rule 8(c) (“If an evidentiary hearing is warranted, the judge must appoint an attorney to represent a petitioner who qualifies to have counsel appointed . . . .”). The Court can resolve the present § 2255 Motion without an evidentiary hearing. 9 B. Motions to Amend The gravamen of Sermon’s First and Second Motions to Amend is that the Court should amend the § 2255 Motion to add a third ground: that Sermon merits relief from his sentence based on Johnson. (See Mot. to Amend; Second Mot. to Amend.) The Government does not argue that the Court should deny the Motions to Amend. merits. It simply addresses the Johnson argument on its (See Johnson Resp.) Rule 15 governs amendments to § 2255 petitions.8 Oleson v. United 2001); see also States, 28 27 U.S.C. F. § App’x 2242 566, 568–69 3 See, e.g., (stating ¶ (6th Cir. that an application for a habeas writ “may be amended or supplemented as provided in actions”). the rules Because of procedure Sermon’s Motions applicable to Amend to are civil not made “during [or] after trial,” Rule 15(a) applies. Under Rule 15(a)(1), “[a] party may amend its pleading once as a matter of course” under circumstances that do not apply here. amend Under Rule 15(a)(2), “[i]n all other cases, a party may its consent or pleading the only court’s with leave,” the opposing although party’s “[t]he court written should freely give leave when justice so requires.” 8 References to “Rule __” are to the Federal Rules of Civil Procedure. 10 In determining the interests of justice, “courts consider several factors, including ‘undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice amendment.’” to the opposing ‘liberal and futility of Oleson, 27 F. App’x at 569 (quoting Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998)). interpreted party, the policy language of in Rule permitting “Furthermore, courts have 15(a) as amendments determination of claims on their merits.’” setting to forth ensure a the Id. (quoting Marks v. Shell Oil Co., 830 F.2d 68, 69 (6th Cir. 1987)). After considering the relevant factors, the Court GRANTS the First Motion to Amend and Second Motion to Amend to the extent they ask the Court to consider Sermon’s Johnson argument. The Court will consider that argument on its merits. C. Motion for Extension of Time Sermon’s Motion for Extension of Time seeks an extension of his deadline for filing a reply in support of the § 2255 Motion. Sermon filed the Motion for Extension of Time after the deadline for filing a reply.9 Rule 6(b)(1)(B) governs the motion. 9 Rule The Order Directing Government Response ordered the Government to file its response within seven days of the Order. (Order Directing Gov’t Resp. 1.) The Government’s deadline was October 12, 2016. The Government filed its Response on October 7, 2016. The Order Directing Government Response stated that Sermon “may 11 6(b)(1)(B) provides that, “[w]hen an act may or must be done within a specified time, the court may, for good cause, extend the time . . . on motion made after the time has expired if the party failed to act because of excusable neglect.” “‘[E]xcusable ‘elastic neglect’ concept.’” under Pioneer Inv. Rule 6(b) Servs. is Co. a v. somewhat Brunswick Assocs. Ltd., 507 U.S. 380, 392 (1993) (quoting 4A Charles Alan Wright & Arthur Miller, Federal Practice and Procedure § 1165 at 479 (2d ed. 1987)). Determining whether a party’s neglect is excusable “is at bottom an equitable [decision], taking account of all relevant circumstances surrounding the party’s omission.” Id. at 395 (footnote omitted). A court making an excusable- neglect determination should balance five “principal” factors: “(1) the danger of prejudice to the nonmoving party, (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, (4) whether the delay was within (5) whether the the reasonable control late-filing party of the acted moving in party, good and faith.” Nafziger v. McDermott Int’l Inc., 467 F.3d 514, 522 (6th Cir. 2006) (citing Pioneer Inv. Servs., 507 U.S. at 395). file a reply within seven (7) days after the filing of the United States’ response.” (Id.) Sermon’s deadline to file a reply was October 14, 2016, well before he filed the Motion for Extension of Time. 12 After considering these factors, the Court finds that Sermon’s failure to file the Motion for Extension of Time by the deadline was due to excusable neglect. be prejudiced if the Court The Government will not considers Sermon’s materials. Granting the Motion for Extension of Time causes no delay and will not negatively circumstances, extension finding, the affect Court in good faith. the Court finds these accepts Based good proceedings. that on cause Sermon its for Under the requested the excusable-neglect Sermon’s requested extension of time. The Motion for Extension of Time is GRANTED. will consider the Johnson-related material in The Court the Sermon Amendment and the Sermon Reply in deciding Sermon’s request for relief under Johnson. III. LEGAL STANDARDS A. Section 2255 Motions Sermon seeks relief under 28 U.S.C. § 2255. (§ 2255 Mot.) Under § 2255(a), [a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . or that the sentence was in excess of the maximum authorized by law . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence. 13 28 U.S.C. § 2255(a). “To succeed on a § 2255 motion, a prisoner in custody must show ‘(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.’” McPhearson v. United States, 675 F.3d 553, 558–59 (6th Cir. 2012) (quoting Mallett v. United States, 334 F.3d 491, 496–97 (6th Cir. 2003)). A prisoner must file his § 2255 motion within one year of the latest of: (1) the date on which the conviction becomes final; judgment of (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f). After a petitioner files a § 2255 motion, the Court reviews it and, “[i]f it plainly appears from the motion, any attached 14 exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion . . . .” Section 2255 Rules at Rule 4(b). “If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.” The § 2255 response. movant is entitled Id. at Rule 5(d). parties to provide motion. Id. at Rule 7(a). to reply to the Id. government’s The Court may also direct the additional information relating to the If the district judge addressing the § 2255 motion is the same judge who oversaw the trial, the judge “‘may rely on his or her recollection of the trial’” in denying the motion. Christopher v. United States, 605 F. App’x 533, 537 (6th Cir. 2015) (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)). B. Sermon’s ACCA’s “Violent Felony” Framework § 2255 Motion, as supplemented, challenges the Court’s finding that he was an armed career criminal under the ACCA. The ACCA provides that a defendant convicted under 18 U.S.C. § 922(g) who has three previous convictions for violent felonies or serious drug offenses is subject to a mandatory minimum sentence § 924(e)(1). of 180 months’ imprisonment. 18 U.S.C. A defendant convicted under § 922(g) who is not an 15 armed career criminal is subject to a statutory maximum sentence of 120 months’ imprisonment. Id. § 924(a)(2). The ACCA defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that (a) “has as an element the use, attempted use, or threatened use of physical force against the person of another” (the “use-of-force clause”); (b) “is burglary, arson, or extortion, [or] involves use of explosives” (c) “otherwise (the involves “enumerated-offenses conduct that clause”); presents a or serious potential risk of physical injury to another” (the “residual clause”). In Id. § 924(e)(2)(B). Johnson, the Supreme Court held that imposing an enhanced sentence under the ACCA’s residual clause violates due process because the residual clause is unconstitutionally vague. 135 S. Ct. at 2563. In Welch v. United States, the Supreme Court held that Johnson applies retroactively to ACCA cases on collateral review. 136 S. Ct. at 1268. Johnson did not call into question sentencing enhancements under the clause. ACCA’s use-of-force 135 S. Ct. at 2563. clause or enumerated-offenses “The government accordingly cannot enhance [a defendant’s] sentence based on a prior conviction that constitutes a violent felony pursuant only to the residual clause.” 2015). United States v. Priddy, 808 F.3d 676, 683 (6th Cir. “But a defendant can still receive an ACCA-enhanced 16 sentence based on the statute’s enumerated-offense[s] clause.” “When ‘violent determining felony’ which provision ‘categorical approach.’” . use-of-force clause or Id. crimes . . fall , within federal . . courts . the use the United States v. Covington, 738 F.3d 759, 762 (6th Cir. 2013) (quotation marks omitted).10 Under that approach, courts “look[] only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” Taylor v. United States, 495 U.S. 575, 600 (1990). “[T]here are two steps in applying the categorical approach to determine whether a prior conviction constitutes . . . a violent felony under the ACCA.” “First, a divisible court by elements.’” must determining whether if the the statute statute lists at issue is ‘alternative Id. (quoting Descamps v. United States, 133 S. Ct. 2276, 2293 (2013)). offense ask Covington, 738 F.3d at 763. elements in “[A] divisible statute, listing potential the alternative, 10 renders opaque which Covington addresses the definition of “crime of violence” under the United States Sentencing Guidelines (“U.S.S.G.”). Its reasoning also applies to ACCA cases because, “[w]hether a conviction is a ‘violent felony’ under the ACCA is analyzed in the same way as whether a conviction is a ‘crime of violence’ under [U.S.S.G.] § 4B1.2(a).” United States v. McMurray, 653 F.3d 367, 371 n.1 (6th Cir. 2011). 17 element played a part in the defendant’s conviction.” Descamps, 133 S. Ct. at 2283. If a statute is divisible, meaning that it “comprises multiple, alternative versions of the crime,” a court uses a “modified categorical approach” and may “examine a limited class of documents to determine which of a statute’s alternative elements formed the basis of the defendant’s prior conviction.” Id. at 2283-84.11 include the “[T]hese ‘charging so-called document, Shepard written documents plea may agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.’” United States v. Denson, 728 F.3d 603, 608 (6th Cir. 2013) (quoting Shepard v. United States, 544 U.S. 13, 16 (2005)). question defendant is whether the “necessarily court admitted” 11 documents the establish elements of a “‘[T]he that the predicate In United States v. Mitchell, the Sixth Circuit explained that “[a] divisible statute is necessary but not sufficient for application of the modified categorical approach.” 743 F.3d 1054, 1063 (6th Cir. 2014). “We make explicit a step in the analysis that the Covington panel alluded to implicitly: if a statute is divisible –– in that it sets out one or more elements of the offense in the alternative –– at least one, but not all of those alternative elements must depart from: (1) the elements of the generic ACCA crime (if the conviction is based on an enumerated offense); or (2) the definitions provided in . . . the ‘use of physical force’ clause . . . (if the conviction is based on a non-enumerated offense).” Id. at 1065. These comments in Mitchell appear to be dicta, but the Court need not decide for purposes of this case whether this portion of the discussion in Mitchell controls. As discussed in Section IV.D below, Sermon’s convictions are categorically violent felonies. 18 offense through his plea.’” United States v. McMurray, 653 F.3d at 377 (quoting Medina-Almaguer, 559 F.3d 420, 423 (6th Cir. 2009)). The Supreme Court has clarified that a court should use the modified categorical multiple elements approach only disjunctively,” when not a statute when it “lists “enumerates various factual means of committing a single element.” v. United States, 136 S. Ct. 2243, 2249, 2256 (2016). Mathis A “court faced with an alternatively phrased statute is thus to determine whether its listed items are elements or means.” Id. at 2256. It can do so by examining state law to determine (a) whether “a state court (b) whether issue.” “carry decision “the Id. definitively statute on its answers face . the . . question,” resolve[s] or the Alternatively listed items are elements where they different punishments” or where the statute “itself identif[ies]” them as “things [that] must be charged,” but they are means where the “statutory ‘illustrative examples’” only. list Id. is drafted to offer “[I]f state law fails to provide clear answers,” a court may take “a peek at the record documents” of the prior conviction “for the sole and limited purpose of determining whether the listed items are elements of the offense.” omitted). Id. (alterations omitted) (quotation marks If the listed items are “means, the court has no call 19 to decide which of the statutory alternatives was at issue in the earlier prosecution.” Id. After having determined which of a statute’s alternative elements formed the basis of the defendant’s prior conviction, or after having determined that the statute is indivisible, the second step in applying the categorical approach is “whether the offense the statute describes, as a category, is a [violent felony].” Covington, 738 F.3d at 763. “When determining whether a particular offense qualifies as a ‘violent felony’ under the use-of-force clause, [a court is] limited to determining whether that offense ‘has as an element the use, attempted use, or threatened use of physical force against the person of another.’” § 924(e)(2)(B)(i)). Priddy, 808 F.3d at 685 (quoting 18 U.S.C. “The force involved must be ‘violent force –– that is, force capable of causing physical pain or injury to another person.’” Id. (quoting Johnson v. United States, 559 U.S. 133, 140 (2010) (“Johnson 2010”)). “If the offense ‘sweeps more broadly’ and ‘criminalizes a broader swath of conduct’ than [would] meet th[is] test[], then the offense, as a category, is not a [violent felony].” Covington, 738 F.3d at 764 (quoting Descamps, 133 S. Ct. at 2281, 2283, 2289–91). 20 IV. ANALYSIS A. Timeliness of § 2255 Motion The Court entered judgment in Sermon’s case on March 23, 2012. (J. in a Criminal Case, ECF No. 113 in 09-20395.) filed a Notice of Appeal. Circuit granted his in this circuit On February 12, 2013, the Sixth motion Circuit Dismissal Order.) suggest Sermon to withdraw his appeal. (Sixth At least two district-court decisions that, in such circumstances, a petitioner’s conviction became final on the date the appeal was voluntarily dismissed. United States v. Goward, 719 F. Supp. 2d 792, 794 (E.D. Mich. 2010) (citing United States v. Sylvester, 258 F. App’x 411, 412 (3d Cir. 2007); see also United States v. May, No. CR 09-20482, 2015 WL 5692736, at *2 (E.D. Mich. Sept. 25, 2015) (citing Goward). Under this rule, Sermon’s conviction in Case No. 09-20395 became final on February 12, 2013, the date on which the Sixth Circuit granted Sermon’s motion to voluntarily dismiss his appeal. Sermon filed his original § 2255 motion on October 16, 2013, within one year of the date Sermon’s conviction became final. The § 2255 Motion is timely. Sermon first raised his Johnson argument in the First Motion for Counsel and the Motion to Amend, both filed on June 20, 2016. Section 2255(f) “governs the timeliness of later- filed amendments.” Reese v. United States, No. 2:13-CV-82-JRG, 21 2016 WL 1050719, at *2 (E.D. Tenn. Mar. 16, 2016); see also Oleson, 27 F. App’x at 570–71. Under § 2255(f)(3), Sermon’s Johnson argument would be timely if raised within one year of “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on Johnson was decided on June 26, 2015. collateral review.”12 Sermon raised his Johnson argument within one year of that date. His Johnson argument is timely. B. Ground Ground One One of the § 2255 Motion is captioned, “Fourth Amendment Violation Claim of Illegal Stop, Search, and Seizure.” (§ 2255 Mot. at PageID 153.) Ground One addresses the search during which Memphis police officers found the gun Sermon was convicted of possessing. was unconstitutional (Id.) under the Sermon argues that this search Fourth Amendment. (Id. at appropriateness of PageID 153–56.) The Sixth Circuit has addressed the Fourth Amendment claims in § 2255 proceedings: As the Supreme Court has explained, the Fourth Amendment exclusionary rule “is a 12 As noted above, the Supreme Court has held that Johnson is retroactively applicable to cases on collateral review. Welch, 136 S. Ct. at 1268. 22 judicially created remedy rather than a personal constitutional right” whose purpose is “to safeguard Fourth Amendment rights generally through its deterrent effect.” It is, thus, a structural remedy designed to exclude evidence so as to deter police misconduct, not to “redress the injury to the privacy of the victim of the search or seizure.” Given its character, the Supreme Court has concluded that consideration of the exclusionary rule has “minimal utility . . . when sought to be applied to Fourth Amendment claims in a habeas corpus proceeding.” For these reasons, the Court in [Stone v. Powell, 428 U.S. 465 (1976)] concluded “that a federal court need not apply the exclusionary rule on habeas review of a Fourth Amendment claim absent a showing that the state prisoner was denied an opportunity for a full and fair litigation of that claim at trial and on direct review.” We see no reasoned basis to distinguish between § 2254 and § 2255 when applying the Supreme Court’s holding in Stone. Ray v. United States, 721 F.3d 758, 762 (ellipses in original) (citations omitted). (6th Cir. 2013) Under Ray, Sermon is not entitled to relief on Ground One unless he can show he was denied an opportunity for full and fair litigation of his Fourth Amendment argument at trial and on direct review. Sermon makes no such showing and cannot plausibly do so. Sermon’s counsel filed a motion to suppress in Case No. 09-20395 that raised (Compare Mot. essentially to the Suppress same arguments Evidence, ECF No. in Ground 38 in One. 09-20395 (“Mot. to Suppress”) with § 2255 Mot. at PageID 153–56.) The parties briefed the Motion to Suppress, and the Magistrate Judge 23 held an evidentiary hearing on October 27, 2010. ECF No. 52 in 09-20395.) Judge issued recommended a that report the (Minute Entry, On March 28, 2011, the Magistrate and recommendations Court grant the in Motion which to she Suppress. (R. & R. on Mot. to Suppress, ECF No. 71 in 09-20395.) The Government filed objections to the Magistrate Judge’s report, and Sermon filed a response. (Gov’t’s Objs. to R. & R., ECF No. 73 in 09-20395; Def.’s Resp. to U.S. Objs. to U.S. Magistrate Ct.’s R. & R. on Def.’s Mot. to Suppress, ECF No. 79 in 09-20395.) The Court held a second hearing on the Motion to Suppress on July 21, 2011. 20395.) (Minute Entry, ECF No. 87 in 09- After that hearing, the Government and Sermon submitted additional briefing on the Motion to Suppress. (Mem. and Authorities in Supp. of the Ct. Denying Def.’s Mot. to Suppress, ECF No. 89 in 09-20395; Def.’s Mem. and Authorities in Supp. of the Ct. Granting His Mot. to Suppress, ECF No. 90 in 09-20395.) On August 30, 2011, the Court Defendant’s Motion to Suppress. issued its Order Denying (ECF No. 91 in 09-20395.) As part of his plea agreement, Sermon specifically reserved the right to “have an appellate court review” the Court’s denial of the Motion to Suppress. (Plea Agreement 1.) As discussed above, however, Sermon voluntarily withdrew his appeal before briefing. In fact, Sermon withdrew his appeal as a condition of his plea agreement in a second federal criminal proceeding. 24 The plea agreement in the second proceeding provided that Sermon “knowingly, voluntarily, and intelligently agrees to dismiss his pending appeal District Court before Case the No. [Sixth Circuit] 09-cr-20395 Appeals Docket No. 12-5362. . . . and originating found at from Court of [That waiver, inter alia, is] made in exchange for the concessions made by the United States in this Plea Agreement.” Sermon, Case No. (Plea Agreement 4, United States v. 12-20156 (W.D. Tenn. Oct. 3, 2012) (“Plea Agreement in 12-20156”).) Sermon was not denied an opportunity for full and fair litigation appeal. of his His Fourth argument Amendment was argument litigated at trial repeatedly, and or it on was Sermon’s choice not to proceed with Sixth Circuit review. The § 2255 Motion is DENIED as to Ground One. C. Ground Ground Two Two of the “Prosecutorial Misconduct.” § 2255 Motion is captioned, (§ 2255 Mot. at PageID 157.) The gravamen of Ground Two is that the prosecutor handling Sermon’s criminal case suborned perjury as part of the prosecutor’s efforts to defeat the Motion to Suppress, particularly at the second hearing on that motion. (Id. at PageID 157–59.) Sermon has waived this argument. his conviction in Case No. He withdrew the appeal of 09-20395 as part agreement in a separate criminal prosecution. 25 of his plea In that plea agreement, Sermon agreed that “with regards to . . . Case No. [09-20395], [Sermon] affirms that . . . his convictions are not the product of States . . . .” any misconduct on the part of (Plea Agreement in 12-20156 at 4.) the United Given that waiver, Sermon cannot raise Ground Two. Even if Sermon had not waived his argument on Ground Two, his argument would lack merit. A district court in this district has stated the relevant standards: “Prosecutorial misconduct must be so egregious as to deny a petitioner a fundamentally fair trial before collateral relief becomes available.” “In order to obtain relief on a claim of prosecutorial misconduct, a petitioner must demonstrate that the prosecution’s conduct was both improper and so flagrant as to warrant reversal.” In the particular context of false testimony, “due process is denied where the state has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured.” . . . The Sixth Circuit has described this kind of misconduct as a species of the Brady doctrine. In order to make out a claim of prosecutorial misconduct, [petitioner] must show (1) the statement was actually false; (2) the statement was material; and (3) the prosecution knew it was false. Johnson v. United States, No. 13-2219-STA-TMP, 2016 WL 4126651, at *9 (W.D. Tenn. Aug. 2, citations omitted). 26 2016) (footnotes and The Court assumes, without deciding, that the various statements at the second motion-to-suppress hearing about which Sermon complains demonstrated that were material. statements Even made at so, the Sermon second has not motion-to- suppress hearing were false, or that the prosecutor knew they were false. Sermon makes conclusory assertions. at PageID 157–59.) (§ 2255 Mot. That is insufficient. The § 2255 Motion is DENIED as to Ground Two. D. Johnson Argument Sermon’s five prior convictions, four for robbery with a deadly weapon and one for robbery, are based on conduct between February 1983 and January 1986. (PSR ¶¶ 27, 30.) During that time, the same Tennessee statute, Tenn. Code Ann. § 39-2-501(a), addressed both robbery and robbery with a deadly weapon.13 Section 39-2-501(a) read in relevant part: Robbery is the felonious and forcible taking from the person of another, goods or money of any value, by violence or putting the person in fear. Every person convicted of the crime of robbery shall be imprisoned in the penitentiary not less than five (5) nor more than fifteen (15) years; provided, that if the robbery be accomplished by the use of a deadly weapon the punishment shall be 13 The PSR does not identify the statute that governed Sermon’s prior convictions. The Government represents that section 39-2501(a) is the relevant statute, and the text of that statute is applicable. (See § 2255 Resp. 4; Tenn. Code Ann. § 39-2501(a).) Sermon does not deny that his prior convictions were governed by section 39-2-501(a). 27 death by electrocution, or the jury may commute the punishment to imprisonment for life or for any period of time not less than ten (10) years. Tenn. Code Ann. § 39-2-501(a) (LEXIS through 1981 legislation) (repealed 1989). Sermon’s robbery conviction is a violent felony. The Sixth Circuit specifically analyzed section 39-2-501(a) in Mitchell. 743 F.3d at 1054. Mitchell decided that robbery under section 39-2-501(a) was categorically a violent felony under the use-offorce clause. Id. at 1059–60. Sermon’s four convictions for robbery with a deadly weapon are also address violent felonies. convictions for Mitchell robbery with a did not deadly specifically weapon. If, however, any robbery without a deadly weapon is a violent felony under the use-of-force clause, any robbery with a deadly weapon is as well. 77 (6th Cf. United States v. Bailey, 634 F. App’x 473, 476– Cir. 2015) (discussing current Tennessee statute on aggravated robbery, which includes robbery “accomplished with a deadly weapon,” and holding that aggravated robbery is categorically a violent felony under the use-of-force clause). Because Sermon has five prior convictions that remain violent felonies after Johnson, he is not entitled to relief. Sermon argues that under Mathis, “none of his [prior convictions] can be used to trigger the ACCA enhancement due to 28 the [divisibleness] of all of the state [statutes].” Amendment 2.) (Sermon That misreads Mathis: that a statute is divisible does not mean that violating it cannot be a violent felony. In any event, robbery under section 39-2-501(a) presents a special case. ACCA, Mathis, like other Supreme Court cases addressing the discusses what courts do when a given statute violated in different ways, some violent, some not.14 can be Here, the Sixth Circuit has already decided that any section 39-2-501(a) violation is a violent felony. Sermon’s reliance on Mathis is unavailing.15 Sermon also cites several cases for the proposition that, if a sentencing court has used the residual clause to determine that a prior conviction was a violent felony, it cannot later determine that the conviction is a violent felony under other parts of the violent-felony definition. (Sermon Amendment 5 14 Specifically, Mathis addressed a defendant’s conviction under an Iowa burglary statute. That statute defined burglary as unlawful entry into “any building, structure, [or] land, water, or air vehicle.” Mathis, 136 S. Ct. at 2250 (quoting Iowa Code § 702.13 (2013)). The generic offense of burglary requires “unlawful entry into a ‘building or other structure.’” Id. (quoting United States v. Taylor, 495 U.S. 575, 598 (1990)). 15 Sermon’s discussions of United States v. Rauda-Constantino, 643 F. App’x 461 (5th Cir. 2016), and United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), fail for the same reasons. In both cases, the statute of conviction could be violated in ways that precluded its qualification as an ACCA predicate. Given the Sixth Circuit’s decision in Mitchell, that is not the case here. 29 (citing In re Thomas, 823 F.3d 1345 (11th Cir. 2016); Lockley v. United States, 632 F.3d 1238, 1245 (11th Cir. 2011); United States v. Foster, 496 F. App’x 1, 1–3 (11th Cir. 2012)).) of these cases proposition stands itself violent-felony is for the proposition incorrect. determination A possibly cited, court based None and reconsidering on the the a residual clause16 may determine that the same conviction is a violent felony under other definitions, such as the use-of-force clause. See, e.g., United States v. Stevens, 651 F. App’x 445, 447–48 (6th Cir. 2016); United States v. Garrett, No. 3:09-CR-146, 2016 WL 3597429, at *1–2 (S.D. Ohio July 5, 2016). Sermon contention discusses that three Sermon’s cases “prior purportedly convictions qualify as triggers for the ACCA enhancement.” 2.) supporting can no the longer (Sermon Reply Those cases do not do so.17 16 During sentencing, the Court did not state that it relied on the residual clause when determining that Sermon was an armed career criminal. (See generally Sentencing Tr.) 17 In Bell v. United States, the Supreme Court denied a petition for a writ of certiorari. 135 S. Ct. 2934 (2015). Nothing in the denial supports Sermon’s arguments. In United States v. Fults, the Sixth Circuit remanded a case to the district court for resentencing. 639 F. App’x 366, 367 (6th Cir. 2016). It did so because it construed the district court as having sentenced the defendant “under the residual clause.” Id. at 375. Because Johnson “invalidate[d] armed career criminal enhancements based on the residual clause,” resentencing was required to determine whether the defendant’s 30 Sermon’s Johnson challenge is DENIED. V. APPEAL ISSUES Under 28 U.S.C. § 2253(c)(2), a district court must evaluate the appealability of its decision denying a § 2255 motion and issue a certificate of appealability (“COA”) “only if the applicant has made a substantial showing of the denial of a constitutional right.” No § 2255 movant may appeal without this certificate. The COA must indicate the specific issue or issues that satisfy the required showing. 28 U.S.C. § 2253(c)(3). A “substantial showing” is made when the movant demonstrates that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks and citation omitted); see also Henley v. Bell, 308 F. App’x 989, convictions qualified as violent felonies under other prongs of the violent-felony definition. Id. Nothing here helps Sermon. United States v. Austin is similar; again, the Sixth Circuit remanded a case for resentencing where the district court may have relied on the residual clause. 623 F. App’x 306, 307 (6th Cir. 2015). As in Fults, the remand was so that the district court could “resentenc[e] in light of Johnson.” Id. Johnson left intact the other prongs of the violent-felony definition, so the district court was free to consider whether the defendant’s prior convictions qualified as violent felonies under those prongs. 31 990 (6th Cir. 2009) (per curiam). A COA does not require a showing that the appeal will succeed. Miller-El, 537 U.S. at 337; 809, Caldwell 2011). v. Lewis, 414 F. App’x 814–15 (6th Cir. Courts should not issue a COA as a matter of course. Bradley v. Birkett, 156 F. App’x 771, 773 (6th Cir. 2005). In this case, Sermon is not entitled to relief. present a question of jurists could differ. The Sixth some substance about He cannot which reasonable Prison Litigation The Court DENIES a COA. Circuit has held that the Reform Act of 1995, 28 U.S.C. §§ 1915(a)–(b), does not apply to appeals of orders denying § 2255 motions. 117 F.3d 949, 951 (6th Cir. 1997). pauperis in a § 2255 case, and Kincade v. Sparkman, Rather, to appeal in forma thereby avoid the appellate filing fee required by 28 U.S.C. §§ 1913 and 1917, a prisoner must obtain pauper status pursuant to Federal Rule of Appellate Procedure 24(a). Id. at 952. Federal Rule of Appellate Procedure 24(a) provides that a party seeking pauper status on appeal must first file a motion in the district court, along with a supporting affidavit. Fed. R. App. P. 24(a)(1). However, Federal Rule of Appellate Procedure 24(a) also provides that if the district court certifies that an appeal would not be taken in good faith, or otherwise denies leave to appeal in forma pauperis, a prisoner must file his motion to proceed in 32 forma pauperis in the appellate court. See Fed. R. App. P. 24(a)(4)-(5). In this case, because Sermon is clearly not entitled to relief, the Court denies a COA. It is CERTIFIED, pursuant to Federal Rule of Appellate Procedure 24(a), that any appeal in this matter would not be taken in good faith. Leave to appeal in forma pauperis is DENIED.18 VI. CONCLUSION For the reasons discussed above, the First Counsel and Second Motion for Counsel are DENIED. Motion The First Motion to Amend and Second Motion to Amend are GRANTED. Motion for Extension of Time is GRANTED. for The The § 2255 Motion, including the Johnson challenge to Sermon’s sentence, is DENIED. IT IS SO ORDERED this 13th day of March, 2017. /s/ Samuel H. Mays, Jr. ____ SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE 18 If Sermon files a notice of appeal, he must also pay the appellate filing fee or file a motion to proceed in forma pauperis and supporting affidavit in the U.S. Court of Appeals for the Sixth Circuit within 30 days. 33

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