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)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

NURI SERMON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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)
)
)
)
)
)
)
)

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