Avery v. United States of America

Filing 41

ORDER denying 1 Section 2255 motion; denying 24 Motion ; denying 28 Motion ; denying 29 Motion for Hearing; denying 30 Motion for Extension of Time to File Response/Reply ; denying 31 Motion ; denying 32 Motion ; denying 33 Motion to Amend/Correct; denying 34 Motion ; denying 35 Motion to Amend/Correct. Signed by Judge Samuel H. Mays, Jr on 03/29/2017. (Mays, Samuel)

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

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BERNARD AVERY, JR.,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

No. 2:14-cv-2118-SHM

ORDER

Before the Court are nine motions.

On February 18, 2014,

Petitioner Bernard Avery, Jr., filed a Motion to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody.

(ECF

No. 1 (“§ 2255 Mot.”); see also Movant’s Br. and Mem. in Supp.
of

[28

Mot.”).)

U.S.C.

§ 2255]

Pet.,

ECF

No.

1-1

(“Mem.

ISO

§ 2255

The Government filed a response to the § 2255 Motion

on October 14, 2014.

(Resp. of U.S. to Def.’s Mot., ECF No. 13

(“First Gov’t Resp.”).)

Avery filed a reply in support of the

§ 2255 Motion on November 10, 2014.

(Mot. Pursuant to Resp. to

Opp’n Pet. to [§ 2255 Mot.], ECF No. 14 (“§ 2255 Reply”).)
On June 8, 2015, Avery filed a motion for leave to amend
the

§ 2255

Motion.

(Pet’r’s

Mot.

for

Leave

to

Amend

his

[§] 2255 Mot. Pursuant to Fed. R. Civ. P. Rule 15(c), ECF No. 18
(“Mot. to Amend”).)

On June 24, 2015, the Court granted the Mo-

tion to Amend and directed the Government to respond.
rected

Order

Addressing

Pending

Mots.

and

Directing

(See CorU.S.

to

Resp. to Amended 28 U.S.C. § 2255 Mot., ECF No. 20 (“June 2015
Order”).)

The Government filed its response on August 10, 2015.

(Resp. of U.S. to Am. 28 U.S.C. § 2255 Mot., ECF No. 23 (“Second
Gov’t Resp.”).)

Avery has not filed a direct reply to the Sec-

ond Government Response, although material in his other filings
addresses the Second Government Response indirectly.

The dead-

line for a direct reply to the Second Government Response has
passed.

(June 2015 Order 5 (setting reply deadline).)

On September 1, 2015, Avery filed a Motion Asking [Court]
to Rule in Movant’s Favor as to His [Amended] [§ 2255] Motion
Pursuant to Fed. R. Civ. [P.] Rule 15(c).
Avery Mot.”).)

(ECF No. 24 (“Second

Like the remainder of Avery’s motions, the Gov-

ernment has not filed a response to the Second Avery Motion.
The deadline for doing so has passed.

L.R. 7.2(a)(2).1

On December 21, 2015, Avery filed a Motion for an Evidentiary Hearing.

(ECF No. 29 (“Third Avery Mot.”).)

The same

1

On December 9, 2015, Avery submitted a document to the Court.
(ECF No. 28.) When entered on the docket on December 14, 2015,
that document was deemed, inter alia, a “[Motion] for Status of
Case.” The Court does not understand that document to be a motion. Unlike many of Avery’s other filings, the document has no
title suggesting that Avery intended the document to be a motion.
The document appears to be a letter to the Court.
The
document does request an update on the § 2255 Motion, a copy of
the Second Government Response, and additional time to respond
to the Second Government Response. (Id. at 1.)
Those requests
are moot. To the extent ECF No. 28 is a motion, it is DENIED.

2

day, Avery also filed a Motion for Extension of Time to Respond
to Government’s Response to Movant’s [§ 2255] Motion.

(ECF No.

30 (“Fourth Avery Mot.”).)
On March 10, 2016, Avery filed a Motion for Judicial Notice.

(ECF No. 31 (“Fifth Avery Mot.”).)

The same day, Avery

also filed a Motion Asking the [Court] to Consider [a] Document
as Newly Discovered Evidence for a Downward Departure.

(ECF No.

32 (“Sixth Avery Mot.”).)
On

March

21,

2016,

Avery

filed

a

Motion

to

Amend

[§ 2255] Motion Pursuant to Fed. R. Civ. P. Rule 15(c).

His
(ECF

No. 33 (“Seventh Avery Mot.”).)
On April 4, 2016, Avery filed a Motion to Supplement.

(ECF

No. 34 (“Eighth Avery Mot.”).)
On June 16, 2016, Avery filed a Motion for Leave to [Amend]
His [§ 2255] Motion Pursuant to Fed. R. Civ. P. Rule 15(c).
(ECF No. 35 (“Ninth Avery Mot.”).)
For the following reasons, the § 2255 Motion is DENIED.
The Second and Third Avery Motions are DENIED.
Motion is DENIED as moot.

The Fourth Avery

The Fifth, Sixth, Seventh, Eighth,

and Ninth Avery Motions are DENIED.
I.

BACKGROUND
A.
On

Case No. 07-20040
February

1,

2007,

a

federal

grand

jury

returned

an

eight-count indictment against four defendants, including Avery.

3

(Indictment in 07-20040,2 ECF No. 1.)

The charges included:

(1) two counts of interference with commerce by threats or violence, in violation of 18 U.S.C. § 1951 (id. at 1, 3); (2) two
counts of bank robbery, in violation of 18 U.S.C. § 2113(a) (id.
at 5, 7); and (3) four counts of carrying or using a firearm
while committing a crime of violence, in violation of 18 U.S.C.
§ 924(c) (id. at 2, 4, 6, 8).

Each count referred to 18 U.S.C.

§ 2 and alleged that the defendants aided and abetted one another in committing the relevant substantive offense.
8.)

All eight counts named Avery.

(Id. at 1–

(See generally id.)

On March 27, 2007, Avery filed a Motion to Refer Defendant
for Mental Competency Evaluation by Psychiatrist/Psychologist.
(ECF No. 50 in 07-20040.)

The Motion represented that Avery’s

counsel believed that Avery was “presently suffering from a mental disease or defect rendering him mentally incompetent to the
[extent] that he is unable to understand the nature and consequences of the proceedings against him and to assist counsel
properly in his defense.”

(Id. ¶ 2.)

That motion was granted

on March 29, 2007, and Avery was ordered to “undergo a complete
mental evaluation . . . to determine whether he is mentally competent.”
07-20040.)

(Order for Mental Evaluation of Def. 1, ECF No. 52 in
The resulting report concluded that, at that time,

2

References to “07-20040” are to filings in United States v.
Lymas, No. 2:07-20040-SHM-tmp (W.D. Tenn.).
Avery was one of
four defendants in Lymas.

4

Avery was not competent to stand trial.

(See, e.g., Minute En-

try, ECF No. 68 in 07-20040.)
The Court held a competency hearing on August 23, 2007.
(Minutes, ECF No. 71 in 07-20040.)

The Court concluded that

Avery was suffering from “mental defect/dementia” and that, at
that time, Avery was incompetent to stand trial.

(Id.)

Avery’s

trial was continued, and Avery was “committed to the custody of
the U.S. Attorney General pursuant to 18 U.S.C. [§] 4241D for a
period of treatment . . . .”

(Order on Continuance and Exclud-

ing Time, ECF No. 73 in 07-20040.)

Avery was transported to the

Federal Medical Center in Butner, North Carolina (“FMC”).

(See,

e.g., Order Granting Mot. to Extend Evaluation Deadline 1, ECF
No. 95 in 07-20040.)
On March 25, 2008, the FMC submitted a Certificate of Restoration of Competency to Stand Trial.

(Letter from Tony D.

Hiscocks, FMC (Mar. 25, 2008), ECF No. 126 in 07-20040 (including certificate as attachment).)

The underlying forensic evalu-

ation of Avery concluded:
In regard to his competency to stand trial,
[Avery] suffers from a major mental illness,
that is, [s]chizophrenia.
However, his
symptoms are largely in remission at this
time.
Unfortunately, [Avery] was unwilling
to be forthright about what he understands
regarding the charges and legal system.
Therefore, a complete description of his
competency-related abilities cannot be offered.
However, there is indirect information to suggest [Avery] understands the

5

nature and consequences of the proceedings
against him and can properly assist in his
defense.
For instance, [Avery] was able to
provide a coherent and logical account of
his alleged activities following his arrest.
During his admission, he was able to understand questions posed to him and respond appropriately.
He also was calm, alert, and
appropriate with the evaluators and other
staff, suggesting he can interact appropriately with counsel as well.
He was attentive during extended interviews, suggesting
he can remain sufficiently focused during
the proceedings.
His speech was also clear
and organized, indicating there are no obvious impediments to him testifying if necessary. He never verbalized any delusional or
irrational ideas.
Further, [Avery] has no
mental condition or gross cognitive deficits
which would suggest he could not understand
the charges or relevant legal information in
order to participate in his own defense.
Given the above, [Avery] is considered competent to stand trial and is ready to be returned to court. . . .
(Robert

E.

Cochrane,

Forensic

Evaluation –– Bernard

Avery

14

(Mar. 6, 2008), ECF No. 34-1 in 07-20040 (“2008 Evaluation”).)
On November 19, 2008, Avery was arraigned.
ECF No. 170 in 07-20040.)
the indictment.

(Minute Entry,

He pled not guilty to all counts in

(Id.)

During a status conference on March 1, 2010,3 the Government
said it had received a report from a defense psychologist, Dr.

3

Between April 2009 and January 2010, the parties and the Court
addressed Avery’s motion to suppress, inter alia, various incriminating post-arrest statements.
(Def.’s Mot. to Suppress
and Mem. in Supp. Thereof 5, ECF No. 196 in 07-20040.)
One
ground of that motion was that Avery was not mentally competent
6

Geraldine Bishop, that Avery was not competent to stand trial.
(Minute Entry, ECF No. 272 in 07-20040.)

The Court determined

that Avery should undergo further mental evaluation before trial.

(Order for Further Mental Evaluation of Def., ECF No. 271

in 07-20040.)

The Court ordered that Avery “undergo a complete

mental evaluation to determine whether he is mentally competent
to stand trial, to understand the nature and consequences of the
proceedings against him and to assist properly in his own defense, and to determine his competency at the time of the alleged

offenses,

retardation.”

all

with

specific

reference

to

mental

(Id.)

The resulting forensic evaluation was submitted on May 27,
2010.

(Letter from Sara M. Revell, FMC (May 21, 2010) (attach-

ing evaluation) (on file with Court).)

Addressing Avery’s com-

petency to stand trial, the evaluation concluded:
Avery does not suffer from a mental disease
or defect rendering him mentally incompetent
to the extent he is unable to understand the
nature and consequences of the proceedings
against him or to assist properly in his defense.
Therefore, we view him as competent
to stand trial at this time. While he does
suffer from [s]chizophrenia, his symptoms
are largely in remission. Further, Avery is
not mentally retarded, nor does he suffer

when he made the statements.
(Id.)
The motion was denied by
the Court on January 28, 2010, including the argument about
Avery’s post-arrest competency.
(Order Adopting as Modified
Magistrate Judge’s R. & R. on Mot. to Suppress 15–16, ECF No.
263.)

7

from any other mental disorder that would
impact his competency.
(Jennifer S. Adams, Forensic Evaluation –– Bernard Avery 18 (May
10, 2010) (on file with Court) (“2010 Evaluation”).)
Avery’s trial began on August 17, 2010.
No. 318 in 07-20040.)

(Minute Entry, ECF

On August 25, 2010, the sixth day of tri-

al, Avery said he wished to change his plea.
No. 323 in 07-20040.)
plea agreement.

(Minute Entry, ECF

Avery and the Government entered into a

(Plea Agreement, ECF No. 325 in 07-20040 (“Plea

Agreement”).)
In the Plea Agreement, Avery agreed to plead guilty to
Counts 1–3 and Counts 5–7 of the Indictment.

(Id. ¶ 7.)

The

Government agreed that, at sentencing, it would move for dismissal of Counts 4 and 8.4

(Id. ¶ 8.)

The Plea Agreement recom-

mended an “agreed upon sentence of imprisonment” of 40 years,
subject to the Court’s agreement.

(Id. ¶ 9.)

On August 30,

2010, the Court entered an Order on Change of Plea stating that
“the Court [had] accepted [Avery’s] plea” on August 25, 2010.
(Order on Change of Plea, ECF No. 326 in 07-20040.)
Before Avery’s sentencing, the U.S. Probation Office prepared a Presentence Investigation Report.
gation

Report

in

07-20040-2

(“PSR”).)

(Presentence InvestiThe

PSR

calculated

Avery’s guidelines-sentencing range pursuant to the 2010 edition

4

Counts 4 and 8 alleged violations of 18 U.S.C. § 924(c).
dictment 4, 8.)

8

(In-

of

the

U.S.

(“U.S.S.G.”).

Sentencing

Commission

Guidelines

Manual

(Id. ¶ 19.)

The PSR calculated the adjusted offense levels for Counts
1, 3, 5, and 7.
respectively.

(Id. ¶¶ 20–45.)

These were 20, 26, 24, and 30,

(Id. ¶¶ 25, 31, 38, 45.)

Pursuant to U.S.S.G.

§ 3D1.4, these adjusted offense levels led to a combined adjusted offense level of 33.

(Id. ¶¶ 46–53.)

The PSR also included

a three-point adjustment based on acceptance of responsibility.
(Id. ¶ 54.)
¶ 56.)

The resulting total offense level was 30.

(Id.

After reviewing Avery’s criminal history, the PSR stated

that he had no criminal-history points, resulting in a criminalhistory category of I.

(Id. ¶ 64.)

Avery’s recommended guidelines-sentencing range for Counts
1, 3, 5, and 7, based on a total offense level of 30 and a criminal-history category of I, was 97 to 121 months.

(Id. ¶ 107.)

Because of his two § 924(c) convictions for Counts 2 and 6, an
additional 32 years of consecutive imprisonment were added to
that sentence.

(Id. ¶¶ 57, 107.)

At his sentencing on January 13, 2011, Avery objected to
portions of the PSR, but not to the calculation of the sentencing range.

(See generally Position of Def. with Regard to Sen-

tencing Factors, ECF No. 336 in 07-20040.)
to 480 months (40 years) of imprisonment.

9

Avery was sentenced
(J. in a Criminal

Case 2, ECF No. 338 in 07-20040 (“J. in Criminal Case”).)

Avery

did not appeal.
B.

Case No. 14-02118

On February 18, 2014, Avery filed the § 2255 Motion.
motion asserts six grounds.

That

Ground 1 is that Avery “is actually

innocent of the underlying offense” in Counts 1 and 2 of the indictment.

(§ 2255 Mot. 6; see also Mem. ISO § 2255 Mot. 1–3.)

Ground 2 is that the Court “erred in accepting Avery’s guilty
plea without factual support of Counts 1 & 2.”
see also Mem. ISO § 2255 Mot. 3–5.)

(§ 2255 Mot. 8;

Ground 3 is that the Court

lacked subject-matter jurisdiction to adjudicate Avery’s prosecution.

(§ 2255 Mot. 10; see also Mem. ISO § 2255 Mot. 5–10.)

Ground 4 has two parts.

The first (“Ground 4(a)”) is that

“[t]he evidence of [Avery’s] case was tainted by the [Government’s]

use

[of

it]

to

convict

Avery

without

jurisdiction.”

(§ 2255 Mot. 12; see also Mem. ISO § 2255 Mot. 10–11.)

The sec-

ond (“Ground 4(b)”) is that “the evidence of [Avery’s] case was
tainted by the state of Tennessee’s intentional waiver and relinquishment of the evidence to the United States.”

(§ 2255

Mot. 12; see also Mem. ISO § 2255 Mot. 11–12.)
Ground 5 is that “Avery was [capriciously] held competent
to

understand

the

nature

and

consequences

of

his

actions.”

(§ 2255 Mot. at PageID 17; see also Mem. ISO § 2255 Mot. 12–13.)
Ground 6 is that Avery’s counsel provided ineffective assistance

10

“by virtue of [counsel’s] failure to protect Avery’s vital liberty interests.”

(§ 2255 Mot. at PageID 17; see also Mem. ISO

§ 2255 Mot. 14–20.)
On May 15, 2014, the Court entered an order directing the
Government to respond to the § 2255 Motion.
Gov’t to Respond, ECF No. 6.)

(Order Directing

On October 14, 2014, the Govern-

ment filed the First Government Response.

The gravamen of that

response was that the § 2255 Motion was time-barred under 28
U.S.C. § 2255(f).

(First Gov’t Resp. 2–4.)

2014, Avery filed the § 2255 Reply.
address

the

Government’s

§ 2255(f)

On November 10,

The § 2255 Reply did not
argument.

(See

generally

On June 8, 2015, Avery filed the Motion to Amend.

That mo-

§ 2255 Reply.)

tion did address the Government’s § 2255(f) argument, asserting
that under § 2255(f)(3) and (f)(4), the § 2255 Motion is not
time-barred because Avery filed it within a year of the U.S. Supreme Court’s decision in Rosemond v. United States, 134 S. Ct.
1240 (2014).

(Mot. to Amend. 2–3.)

The Motion to Amend argued

also that the Court should grant Avery leave to amend his § 2255
Motion to include his argument that the § 2255 Motion is not
time-barred.

(Id. at 1.)

On June 24, 2015, the Court entered the June 2015 Order.
That order, inter alia, granted the First Motion to Amend and
ordered

the

Government

to

“specifically

11

address[]

whether

[Avery’s] claims remain time barred under Rosemond.”
Order 4.)

(June 2015

The Government filed the Second Government Response

on August 10, 2015.

The gravamen of that response was that,

notwithstanding Avery’s Rosemond argument, the § 2255 Motion was
time-barred.

(Second Gov’t Resp. 1–3.)

Between September 1, 2015, and June 16, 2016, Avery filed
the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and
Ninth Avery Motions.
II.

STANDARD OF REVIEW FOR § 2255 MOTIONS
Avery seeks relief under 28 U.S.C. § 2255.

§ 2255 Mot.)

(See generally

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.
28 U.S.C. § 2255(a).
“To prevail on a motion under § 2255, a [petitioner] must
prove ‘(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.’”

Goward v. United States, 569 F. App’x 408, 412 (6th

12

Cir. 2014) (quoting McPhearson v. United States, 675 F.3d 553,
559 (6th Cir. 2012)).
A prisoner must file his § 2255 motion within one year of
the latest of:
(1)

the date on which the judgment of conviction becomes final;

(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
exhibits, and the record of prior proceedings that the moving
party is not entitled to relief, the judge must dismiss the motion . . . .”

Rules Governing Section 2255 Proceedings for the

U.S. District Courts at Rule 4(b).

“If the motion is not dis-

missed, the judge must order the United States attorney to file
an answer, motion, or other response within a fixed time, or to
13

take other action the judge may order.”

Id.

The § 2255 movant

is entitled to reply to the government’s response.
5(d).

Id. at Rule

The Court may also direct the parties to provide addi-

tional information relating to the motion.

Id. at Rule 7(a).

If the district judge addressing the § 2255 motion is the same
judge who oversaw the petitioner’s trial, the judge “may rely on
his recollections from trial in deciding” the motion.

Fifer v.

United States, 660 F. App’x 358, 363 (6th Cir. 2016) (citing Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)).
III. ANALYSIS
A.

Timeliness of § 2255 Motion

Under § 2255(f), a petitioner must file his § 2255 motion
within

one

§ 2255(f).

year

of

“the

latest

of”

four

dates.

28

U.S.C.

Avery argues that the Rosemond decision makes the

§ 2255 Motion timely under § 2255(f)(3) or § 2255(f)(4).

(Mot.

to Amend 2–5.)
As a threshold matter, the § 2255 Motion is not timely under § 2255(f)(1).

Avery’s judgment of conviction was entered on

January 19, 2011.

(J. in Criminal Case.)

He did not appeal.

His judgment of conviction became final ten days after entry of
the judgment of conviction (i.e., the expiration of the period
in which Avery could have filed an appeal).
States,

457

F.

App’x

462,

464–65

(6th

Cir.

Johnson v. United
2012)

(“Johnson

2012”) (quoting Sanchez-Castellano v. United States, 358 F.3d

14

424, 426–27 (6th Cir. 2004)); Polinski v. United States, No.
3:11-CR-190, 2016 WL 7664733, at *1 (N.D. Ohio Dec. 30, 2016)
(citing Sanchez-Castellano).

That date was January 29, 2011.

To be timely under § 2255(f)(1), the § 2255 Motion had to
be filed by January 29, 2012.
2014.

Avery filed it on February 18,

The § 2255 Motion is not timely under § 2255(f)(1).
To be timely under § 2255(f)(3), a movant must file his

§ 2255 motion 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 collateral review.”

Avery

argues that Rosemond recognized a new right on which the § 2255
Motion depends.

(Mot. to Amend 2–4.)

Rosemond was decided on March 5, 2014 –– after Avery had
filed the § 2255 Motion.

As this suggests, Rosemond is not the

source of any “right asserted” in the § 2255 Motion.

Rosemond’s

key holding is that, to be convicted of aiding and abetting a
§ 924(c) offense, a defendant must have had “advance knowledge”
that an accomplice planned to bring a gun as part of carrying
out the predicate offense:
[T]he § 924(c) defendant’s knowledge of a
firearm must be advance knowledge –– or otherwise said, knowledge that enables him to
make the relevant legal (and indeed, moral)
choice. When an accomplice knows beforehand
of a confederate’s design to carry a gun, he
can attempt to alter that plan or, if unsuc-

15

cessful, withdraw from the enterprise; it is
deciding instead to go ahead with his role
in the venture that shows his intent to aid
an armed offense.
But when an accomplice
knows nothing of a gun until it appears at
the scene, he may already have completed his
acts of assistance; or even if not, he may
at that late point have no realistic opportunity to quit the crime. And when that is
so, the defendant has not shown the requisite intent to assist a crime involving
a gun.
134 S. Ct. at 1249.
For Avery’s § 2255 Motion to be timely under § 2255(f)(3),
the arguments in the § 2255 Motion must hinge on Rosemond.

They

do not.
Ground 1 argues that Avery is “actually innocent” of Counts
1 and 2 of the indictment.5

(§ 2255 Mot. 6.)

Avery’s Ground 1

5

Avery’s actual-innocence assertion raises another issue. Actual innocence can be a ground for equitable tolling. See, e.g.,
Bacon v. Klee, No. 15-2491, 2016 WL 7009108, at *8 (6th Cir.
Nov. 30, 2016).
The Sixth Circuit has discussed the actualinnocence showing needed to justify equitable tolling:
“[A]ctual innocence means factual innocence,
not mere legal insufficiency.”
In order to
demonstrate actual innocence, the petitioner
must present “evidence of innocence so
strong that a court cannot have confidence
in the outcome of the trial unless the court
is also satisfied that the trial was free of
nonharmless constitutional error.”
A showing must rely on “new reliable evidence ––
whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence –– that was not
presented at trial.”
Id. at *8 (citations omitted).

16

arguments,

however,

do

not

rely

on

Rosemond’s

advance-

knowledge holding.
Ground 2 argues that the district court erred in accepting
Avery’s guilty plea because it was based on insufficient admitted

facts.

(Id.

at

8.)

This

argument

has

nothing

to

do

with Rosemond.
Ground 3 asserts that this Court lacked jurisdiction to
oversee Avery’s prosecution.

(Id. at 10.)

Rosemond does not

address jurisdictional issues.
Ground 4(a) contends that “evidence of [Avery’s] case was
tainted by the [Government’s] use [of it] to convict Avery without jurisdiction.”

(Id. at 12.)

Ground 4(b) contends that “the

evidence of [Avery’s] case was tainted by the state of Tennessee’s intentional waiver and relinquishment of the evidence to
the

United

States.”

(Id.)

Those

issues

are

not

affected

by Rosemond.

Avery’s actual-innocence assertion does not justify any application of equitable tolling. As a threshold matter, Avery asserts
actual innocence only as to Counts 1 and 2 of the indictment.
(§ 2255 Mot. 6; Mem. ISO § 2255 Mot. 1–3.)
Even if Avery had
presented evidence of actual innocence, it would not justify equitable tolling as to the entire § 2255 Motion.
Avery does not make a sufficient actual-innocence showing as to
Counts 1 and 2. He presents no new reliable evidence –– indeed,
he presents no new evidence –– suggesting that he was actually
innocent of the conduct alleged in Counts 1 and 2. (See generally § 2255 Mot. 6; Mem. ISO § 2255 Mot. 1–3.)

17

Ground 5 argues that “Avery was [capriciously] held competent to understand the nature and consequences of his actions.”
(§ 2255 Mot. at PageID 17.)

Rosemond does not address competen-

cy issues.
Ground 6 asserts that Avery received ineffective assistance
of

counsel

at

trial.

(Id.)

None

of

Avery’s

ineffective-

assistance allegations hinges on the intent needed to establish
liability for aiding and abetting a § 924(c) violation.

(See

generally Mem. ISO § 2255 Mot. 14–20 (section of memorandum detailing ineffective-assistance arguments).)
None of the arguments in the § 2255 Motion relies on Rosemond.

Section 2255(f)(3) and Rosemond do not make the § 2255

Motion timely.6

6

Even if the arguments in the § 2255 Motion did rely on Rosemond
–– or the Motion to Amend were interpreted to offer a Rosemond–
based argument as a new, independent ground for § 2255 relief ––
the Sixth Circuit has not decided whether Rosemond applies retroactively to cases on collateral review. Berry v. Capello, 576
F. App’x 579, 592 (6th Cir. 2014).
Most district-court decisions in this circuit hold that Rosemond is not retroactive.
Evans v. United States, No. 14-2170, 2015 WL 5838647, at *3
(W.D. Tenn. Oct. 7, 2015) (declining to give Rosemond retroactive effect); Aquil v. Butler, No. CIV.A. 6:14-230-DCR, 2015 WL
1914404, at *4 (E.D. Ky. Apr. 27, 2015) (same); Moreno v.
Snyder-Morse, No. 14-CV-106-HRW, 2015 WL 82418, at *4 (E.D. Ky.
Jan. 6, 2015) (same); Taylor v. Sepanek, No. 14-CV-160-HRW, 2014
WL 6705408, at *4 (E.D. Ky. Nov. 26, 2014) (same); Douglas v.
Butler, No. 14-CV-177-KKC, 2014 WL 6633230, at *6 (E.D. Ky. Nov.
21, 2014) (same); Taniguchi v. Butler, No. 14-CV-120-KKC, 2014
WL 5063748, at *5 (E.D. Ky. Oct. 8, 2014) (same); but see United
States v. Watson, No. 3:11-CR-079, 2016 WL 3625449, at *5 (S.D.
Ohio July 7, 2016) (deciding that Rosemond should be given retroactive effect to cases on collateral review), report and rec18

Avery also suggests that Rosemond makes the § 2255 Motion
timely under § 2255(f)(4).
ment is not well taken.

(Mot. to Amend 1, 5–6.)

That argu-

Under § 2255(f)(4), a § 2255 motion is

timely if filed within one year of “the date on which the facts
supporting the claim or claims presented could have been discovered through the exercise of due diligence.”
facts supporting his claim.
decision as a new fact.

Avery cites no new

He appears to treat the Rosemond

“[Section] 2255(f)(4),” however, “is

directed at the discovery of new facts, not newly-discovered
law[.]”

Phillips v. United States, 734 F.3d 573, 580 (6th Cir.

2013); see also Street v. United States, No. 1:16-CV-1147, 2016
WL 7367286, at *3 (W.D. Mich. Dec. 20, 2016).
Avery’s § 2255 Motion is untimely under § 2255(f).

The

§ 2255 Motion is DENIED.
B.

Second Avery Motion

The Second Avery Motion asks the Court to grant the § 2255
Motion because Avery had not received the Government response
ordered in the June 2015 Order.

(See generally Second Avery

Mot.)
The Second Government Response was timely filed.

The June

2015 Order directed the Government to respond to the Motion to
Amend by July 23, 2015.

(June 2015 Order 4–5.)

On July 17,

ommendation adopted, No. 3:11-CR-079, 2016 WL 4182364 (S.D. Ohio
Aug. 8, 2016).

19

2015, the Government requested an extension of that deadline to
August 10, 2015.
No. 21.)

(Mot. for Extension of Time to Respond, ECF

That request was granted.

Extension of Time, ECF No. 22.)

(Order Granting Mot. for

The Government filed the Second

Government Response on August 10, 2015.

(Second Gov’t Resp.)

The certificate of service for that filing represents that the
Government mailed the Second Government Response to Avery the
same day.

(Id. at 4.)

The Second Avery Motion represents that, as of August 24,
2015, Avery had not received the Second Government Response.
(Second Avery Mot. 1.)

The Third Avery Motion, filed on Decem-

ber 21, 2015, refers to material from the Second Government Response.

(Third Avery Mot. 1.)

At some point before December

21, 2015, Avery must have received a copy of that filing.

Since

December 2015, Avery has had ample opportunity to reply to the
Second Government Response.

The Court will not grant Avery’s

§ 2255 Motion merely because he represents that he had not received

a

copy

of

the

Second

Government

24, 2015.
The Second Avery Motion is DENIED.

20

Response

by

August

C.

Third Avery Motion

The

Third

Avery

Motion

requests

an

evidentiary

hearing

based on purported “clear proof” of Avery’s actual evidence.7
(Third Avery Mot. 1.)

“If a habeas petitioner presents a factu-

al dispute, then ‘the habeas court must hold an evidentiary
hearing to determine the truth of the petitioner’s claims.’”
Pola v. United States, 778 F.3d 525, 532 (6th Cir. 2015) (quoting Huff v. United States, 734 F.3d 600, 607 (6th Cir. 2013)).
As discussed above, the arguments in the § 2255 Motion, including

Avery’s

actual-innocence

arguments, are

They present no factual disputes for the Court.
hearing is necessary.
D.

time-barred.8
No evidentiary

The Third Avery Motion is DENIED.

Fourth Avery Motion

The Fourth Avery Motion requests an extension of time to
respond to the Second Government Response.
1.)

(Fourth Avery Mot.

The Fourth Avery Motion was filed on December 21, 2015,

over three months after the Government had filed the Second Government Response.

Between December 21, 2015, and the date of

7

The Third Avery Motion also appears to treat Rosemond as a
stand-alone ground for § 2255 relief. (Third Avery Mot. 1.) As
discussed in note 6 supra, Rosemond is not retroactive on collateral review. Avery’s Rosemond argument is unavailing.
8

As noted in note 5 supra, claims of actual innocence can justify application of equitable tolling. As with the § 2255 Motion,
however, the Third Avery Motion asserts only that Avery is innocent of Counts 1 and 2 of the indictment, and even as to those
counts, presents no new reliable evidence of actual innocence.
(See generally Third Avery Mot.)

21

this Order, Avery has not filed a reply to the Second Government
Response.
ment

the

tolling

He has filed numerous motions to amend and/or supple§ 2255

issues

Motion,
that

bear

including
on

the

some
Second

addressing

equitable-

Government

Response.

Given that the Court addresses those motions below, and given
the resolution of the § 2255 Motion, the Fourth Avery Motion is
DENIED as moot.
E.

Fifth Avery Motion

The Fifth Avery Motion asks the Court to “consider the decision” in United States v. Whitehead, 605 F. App’x 888 (11th
Cir. 2015).

Avery asserts that, like the Whitehead defendant,

he

a

is

“not

true

reoffender penalty.”

recidivist

[so

as]

to

qualify

for

[a]

(Fifth Avery Mot. 1.)

Avery points to a 2011 report from the U.S. Sentencing Commission cited by the Whitehead defendant.

(Id.)

That report

states that “§ 924(c)’s requirement that mandatory minimum sentences be ‘stacked’ can result in unduly harsh sentences where
all the stacked § 924(c) offenses are charged in the same indictment as part of a crime spree and the defendant had no prior
criminal history.”

Whitehead, 605 F. App’x at 890–91 (discuss-

ing U.S. Sentencing Comm’n, Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (2011)).
The argument in the Fifth Avery Motion is new.
appear in the § 2255 Motion.

It did not

(Compare Fifth Avery Mot. with

22

§ 2255 Mot.; Mem. ISO § 2255 Mot.)

The Court understands the

Fifth Avery Motion to raise a new ground for § 2255 relief.
Proposed amendments and supplements to a § 2255 motion must be
filed within § 2255(f)’s one-year statute of limitations.

See,

e.g., Berry v. United States, No. 214-CV-02070-STA-CGC, 2017 WL
401269, at *10 (W.D. Tenn. Jan. 30, 2017).
The argument in the Fifth Avery Motion is time-barred.

The

Eleventh Circuit decided Whitehead in April 2015, but the underlying argument is based on a report issued in 2011.

Whatever

the merits of the argument,9 Avery cannot raise it now.
untimely

under

all

four

paths

to

timeliness

It is

established

by

§ 2255(f)(1)–(4).
The Fifth Avery Motion is DENIED.
F.

Sixth Avery Motion

The

Sixth

Avery

Motion

asks

the

Court

to

“consider

[Avery’s] mental competence as a factor for a downward departure.”

(Sixth Avery Mot. 2.)

Avery appears to argue (1) that

he should not have been deemed competent to stand trial, and
(2) that a document purporting to be a letter from the Social

9

The argument is also meritless. Whitehead itself did not grant
relief based on the argument.
605 F. App’x at 892 (“The district court considered the 2011 Report and Whitehead’s arguments
that he had no prior criminal history and was not a true recidivist. . . .
But, the district court also considered the need
for the sentence to promote respect for the law, deter future
criminal conduct, and provide a just punishment. . . .
Under
the totality of the circumstances, we cannot say the district
court abused its discretion.”).

23

Security Administration (the “SSA Letter”) constitutes new evidence of his prior lack of competence.

(See generally id.)

The competency argument in the Sixth Avery Motion is new.
It did not appear in the § 2255 Motion.

(Compare Sixth Avery

Mot. with § 2255 Mot.; Mem. ISO § 2255 Mot.)

The Sixth Avery

Motion must comply with § 2255(f)’s one-year statute of limitations.

Berry, 2017 WL 401269, at *10.

The competency argument is time-barred.

The argument was

available to Avery as soon as his judgment of conviction became
final.

None of the § 2255(f) routes to timeliness makes the

competency argument timely.
The SSA Letter does not make Avery’s competency argument
timely.

Under

§ 2255(f)(4),

a

§ 2255

motion

is

timely

if

brought within one year of “the date on which the facts supporting the claim or claims presented could have been discovered
through the exercise of due diligence.”
June 27, 2014.
2016.

The SSA Letter is dated

The Sixth Avery Motion was filed on March 20,

Even if the SSA Letter presented new facts supporting a

§ 2255 argument, Avery filed the Sixth Avery Motion more than a
year after the date of the letter.

The SSA Letter does not make

the Sixth Avery Motion timely.
The fact in the letter on which Avery’s argument depends is
that Avery was diagnosed as paranoid schizophrenic in February
2002.

Avery knew of his diagnosis long before June 2014.

24

Be-

fore Avery’s criminal trial, there was extensive motion practice
about Avery’s competency, during which Avery’s schizophrenia was
noted repeatedly.
tion.)

(See, e.g., 2008 Evaluation; 2010 Evalua-

The SSA Letter does not present a new fact making the

competency argument timely under § 2255(f)(4).
The Sixth Avery Motion is DENIED.
G.

Seventh Avery Motion

The Seventh Avery Motion asks the Court to consider the decision by the U.S. Court of Appeals for the Seventh Circuit in
Davis v. Humphreys, 747 F.3d 497 (7th Cir. 2014).
Avery Mot. 1.)

(Seventh

Davis addresses whether mental incompetence can

justify equitable tolling.

See, e.g., Davis, 747 F.3d at 499.

Avery asserts that, because of mental incompetence, he is entitled to equitable tolling as to his prior filings.

(See gener-

ally Seventh Avery Mot.)
The Sixth Circuit has decided that § 2255(f)’s limitations
period can be tolled for equitable reasons.10
F. App’x at 469.

Johnson 2012, 457

A § 2255 petitioner is entitled to equitable

tolling only if he establishes (1) “‘he has been pursuing his
rights diligently,’” and (2) “‘some extraordinary circumstance
stood in his way and prevented timely filing.’”

Johnson 2012,

457

Lebanon

F.

App’x

at

470

(quoting

Hall

v.

Warden,

Corr.

10

The Court’s approach to when mental incompetence justifies equitable tolling is governed not by Davis, a Seventh Circuit
case, but by Sixth Circuit law.

25

Inst.,

662

F.3d

745,

749

(6th

Cir.

2011)).

tolling doctrine is to be applied “‘sparingly.’”

The

equitable-

United States

v. Sferrazza, 645 F. App’x 399, 408 (6th Cir. 2016) (quoting
Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010)).

The

petitioner bears the burden of showing that equitable tolling
applies.

Johnson 2012, 457 F. App’x at 469 (citing McClendon v.

Sherman, 329 F.3d 490, 494 (6th Cir. 2003)).
In the Sixth Circuit, a petitioner’s “mental incompetence
or incapacity may provide a basis for equitable tolling.”

Ata

v. Scutt, 662 F.3d 736, 741 (6th Cir. 2011) (citing McSwain v.
Davis, 287 F. App’x 450, 456 (6th Cir. 2008)); see also, e.g.,
Banzant v. United States, No. 13-2795-STA-DKV, 2016 WL 3582210,
at *5 (W.D. Tenn. June 28, 2016).

A petitioner must show (1) he

is mentally incompetent, and (2) his mental incompetence caused
his failure to comply with the relevant statute of limitations.
Ata, 662 F.3d at 742.
In Stiltner v. Hart, 657 F. App’x 513 (6th Cir. 2016), the
Sixth Circuit adopted the test of Bills v. Clark, 628 F.3d 1092
(9th Cir. 2010), to “flesh[] out” Ata’s test for when mental incompetence justifies equitable tolling.
(1)

Under Bills:

First, a petitioner must show his mental impairment was an “extraordinary
circumstance” beyond his control, by
demonstrating the impairment was so severe that either

26

(a)

(b)

(2)

petitioner was unable rationally
or factually to personally understand the need to timely file, or
petitioner’s mental state rendered
him unable personally to prepare a
habeas petition and effectuate its
filing.

Second, the petitioner must show diligence in pursuing the claims to the extent he could understand them, but that
the mental impairment made it impossible to meet the filing deadline under
the totality of the circumstances, including reasonably available access to
assistance.

Stiltner, 657 F. App’x at 521 (quoting Bills, 628 F.3d at 1099–
100) (emphasis removed).
Avery

represents

that,

during

his

needed support for mental disabilities.

incarceration,

he

has

That support includes

Avery’s having a mental-health companion and attending “group
sessions” every two weeks “for mental recovery.”
Mot. 1, 3.)

(Seventh Avery

Avery represents that, before being incarcerated,

he needed a caretaker, and that he was “one of the many individuals in the State of Tennessee to receive [s]tate [f]unds checks
regarding his mental incapacities.”
that he has a low IQ.

(Id.)

(Id. at 1–2.)

He states

He states that numerous doctors

have previously found him mentally incompetent.

(Id. at 2–3.)

He points to Dr. Jason Dana, Dr. John Hutson, and Dr. Geraldine
Bishop, each of whom evaluated Avery before his trial.

(See,

e.g., Minute Entry No. 71 in 07-20040 (Dana); Minute Entry No.

27

204

in

07-20040

(Bishop).)

(Hutson);

Minute

Entry

No.

272

in

07-20040

Avery also asserts that the SSA Letter shows that he

lacks mental competence.

(Id. at 2.)

Avery has not established that his mental impairment was a
sufficiently severe “extraordinary circumstance” during the relevant limitations period.
As a threshold matter, Avery does not state which of his
motions should receive the benefit of equitable tolling.

The

§ 2255 Motion, Fifth Avery Motion, and Sixth Avery Motion are
time-barred.

(See Sections III.A, III.E, and III.F supra.)

The

Court understands the issue posed by the Seventh Avery Motion to
be whether alleged mental incompetence justifies equitable tolling making any of those motions timely.
For all three motions, the key limitations period is from
January 29, 2011, to January 29, 2012 (the “Limitations Period”).

As to the § 2255 Motion, all of its arguments were avail-

able to Avery when his judgment of conviction became final on
January 29, 2011.

(See Section III.A supra.)

To justify equi-

table tolling as to the § 2255 Motion, Avery must prove an “extraordinary circumstance” during at least part of the period
between January 29, 2011, and January 29, 2012.

As for the

Fifth and Sixth Avery Motions, the arguments in both were also
available to Avery when his judgment of conviction became final.
(See Sections III.E and III.F supra.)

28

To justify equitable

tolling as to either motion, Avery must again prove an “extraordinary circumstance” during the same time period.
Avery presents no specific evidence about his mental state
during the Limitations Period.11

The evaluations by Dr. Dana,

Dr. Hutson, and Dr. Bishop took place before the Limitations Period.

They concerned Avery’s competency to attend trial or his

competency when he made various post-arrest statements.

Simi-

larly, that Avery received state funds, or had a caretaker, before his incarceration is not evidence of his condition during
the Limitations Period.

Avery’s representations about his pre-

sent use of mental-health resources are similarly unavailing.
They bear on Avery’s current mental state, not his state during
the Limitations Period.
Some of Avery’s evidence may bear on his mental state during the Limitations Period, but even if so, it is insufficient.
Pretrial determinations that Avery had a low IQ presumably indicate that this condition applied during the Limitations Period.
A low IQ, however, is not an “extraordinary circumstance” justifying equitable tolling.

“With specific reference to IQ, the

Sixth Circuit has held that a low intelligence quotient is not
grounds for equitable tolling, absent some showing that a petitioner’s intelligence caused him to miss a filing deadline.”

11

The Court assumes without deciding that Avery’s statements in
the Seventh Avery Motion are admissible evidence.

29

Banzant,

2016

WL

3582210,

at

*5.

Avery

has

made

no

such showing.
Avery’s 2002 diagnosis as “paranoid schizophrenic” may well
reflect a condition he had during the Limitations Period.

But

“mental illness is not the same as mental incompetence.”

Wat-

kins v. Deangelo-Kipp, No. 15-2445, 2017 WL 87019, at *5 (6th
Cir. Jan. 10, 2017).

Even if Avery faced an underlying mental

disorder during that period, there is no evidence that it created an “extraordinary circumstance.”

Cherry v. Smith, No. 5:14-

CV-00192-GNS-LLK, 2016 WL 3746355, at *5 (W.D. Ky. Apr. 21,
2016) (“The mere diagnosis of an impairment says nothing about
the impairment’s severity or the degree of symptoms at a given
time.

It does not establish that a mental impairment prevented

a petitioner from diligently pursuing his legal rights.”), report and recommendation adopted, No. 5:14-CV-00192-GNS-LLK, 2016
WL 3748546 (W.D. Ky. July 8, 2016); Sloane v. Morgan, No. 4:13CV-2052, 2014 U.S. Dist. LEXIS 182758, at *41 (N.D. Ohio Dec. 2,
2014) (“While it is undisputed [petitioner] has been variously
diagnosed with several severe mental disorders (including Paranoid Schizophrenia, Psychotic Disorder, and Dissociative Disorder), he does not sufficiently allege that his mental condition
during the limitations period rendered him incompetent to pursue
his federal habeas rights.”).

30

Avery has also provided no evidence that his mental condition since filing the § 2255 Motion has become better than it
was during the Limitations Period.

That matters because Avery

has made numerous filings since filing the § 2255 Motion.
out

evidence

that

Avery’s

mental

capabilities

since

With-

February

2014 differ from those during the Limitations Period, Avery’s
many filings suggest that he could have timely filed a § 2255
motion during the Limitations Period.
The Seventh Avery Motion is DENIED.12
H.

Eighth Avery Motion

The Eighth Avery Motion suggests that government actions
prevented Avery from timely filing prior motions.
Mot. 1.)

(Eighth Avery

Avery states that, between January 19, 2011, and Janu-

ary 19, 2012, he was in protective custody, in special housing
units (“SHU”), or in transit between facilities.

(Id. at 2, 5.)

He also asserts that on other dates he was in SHU or in transit.
(Id. at 3; see also ECF No. 34-2 at PageID 166–86 (“Eighth Avery
Mot. Ex. 2”) (documentation of dates when Avery was in SHU).)
Avery represents that, while in protective custody, in SHU, or

12

At various points, the Seventh Avery Motion appears to relitigate Avery’s pretrial determination of competency. (See, e.g.,
Seventh Avery Mot. 3–4.) He also reasserts that the SSA Letter
is key evidence about his mental competency at trial, and that
it was ineffective assistance for his trial counsel not to find
and use that letter. (Id. at 2–4.) For the reasons discussed
in Section III.F above in relation to the Sixth Avery Motion,
these arguments fail.

31

in transit, he lacked access to legal materials, a computer, or
a legal guardian, and could not have filed § 2255-related materials.

(Id. at 2–3.)

Avery provides materials suggesting he was in SHU during
parts of the period from January 19, 2011, through February 7,
2012.13

Even if Avery had been in SHU the entire time (a point

his materials do not establish), his time-barred motions would
remain time-barred.

Section 2255(f)’s one-year statute of limi-

tations would have started to run once Avery was out of SHU.

28

U.S.C. § 2255(f)(2) (limitations period begins to run on date
impediment is removed).
ruary 7, 2013.

One year from February 7, 2012, is Feb-

Avery did not file the § 2255 Motion until Feb-

ruary 18, 2014.
The Eighth Avery Motion states also that Avery “has a known
mental illness that will not allow him to understand things to
[their] full ability.”
3.)

(Eighth Avery Mot. 1; see also id. at

That refers to Avery’s diagnosis as a paranoid schizophren-

ic and to his evaluations by various doctors.

(Id. at 2–4.)

The material largely duplicates material in the Seventh Avery
Motion.

To the extent it is duplicative, it fails for the rea-

sons presented in Section III.G above.

13

The Court assumes without deciding that the materials
Eighth Avery Motion Exhibit 2 are admissible evidence.

32

in

The nonduplicative medical argument the Eighth Avery Motion
makes is that Avery did not take medication for his condition
during parts of the Limitations Period.

(Id. at 3, 4.)

Avery

argues that could have exacerbated his mental problems so as to
justify equitable tolling.

(Id.)

The documents Avery submits

with the Eighth Avery Motion suggest that, for a few months in
2011, he was not prescribed medications because he had refused
to take them.

(See, e.g., Eighth Avery Mot. Ex. 2 at PageID 176

(June 2011 document noting Avery’s “noncompliance with his psychotropic medication” and “order to discontinue” one of Avery’s
medications immediately).)
The argument is not well taken.

First, Avery’s documents

are unclear as to whether Avery went completely without medications during this period.
stating

that

one

medication

(Compare id. (June 2011 document
was

being

discontinued);

id.

at

PageID 171 (March 2011 document stating that Avery was taking
multiple medications) with id. at PageID 179 (October 2011 document stating that Avery “is not currently prescribed any psychotropic medication”); id. at PageID 180 (October 2011 document
stating that Avery “is not currently receiving any psychiatric [medications]”).)
Second, the records show that by February 2012, Avery had
resumed taking medications.

(Id. at PageID 183 (February 2012

document stating that Avery was “currently taking Geodon, Pro-

33

zac, and Cogentin”); id. at PageID 184 (February 2012 document
stating that Avery was “currently prescribed Prozac and Geodon”).)

Because Avery was taking medications by February 2012,

his medication argument fails for the same reason his SHU argument fails.

Avery provides no evidence that he stopped taking

his medications again after February 2012.

Even if his failure

to take medications could lead to equitable tolling, § 2255(f)’s
limitations period would have started in February 2012 and would
have expired in February 2013.

Avery filed the § 2255 Motion in

February 2014.14
The Eighth Avery Motion is DENIED.
I.

Ninth Avery Motion

The Ninth Avery Motion asks the Court for leave to amend
the § 2255 Motion to include an argument based on Johnson v.
United States, 135 S. Ct. 2551 (2015).

(See generally Ninth

Avery Mot. 1.)
As a threshold matter, the Ninth Avery Motion was timely
filed as to its Johnson argument.

Proposed amendments to a

§ 2255 motion must be filed within § 2255(f)’s one-year statute

14

The Eighth Avery Motion also states that, after the Government
filed the Second Government Response, Avery did not receive it
until December 11, 2015. (Eighth Avery Mot. 3.) That argument
does not address equitable tolling.
It appears to justify a
late reply to the Second Government Response. Even now, however, over a year after Avery received the Second Government Response, he has not filed a reply to the Second Government
Response. Avery’s argument is not well taken. A late reply to
the Second Government Response will not be permitted now.

34

of

limitations.

Berry,

2017

WL

401269,

at

*10.

Under

§ 2255(f)(3), a petitioner must bring a § 2255-related argument
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 collateral review.”

Johnson has been made

retroactively applicable to cases on collateral review.

Welch

v. United States, 136 S. Ct. 1257, 1268 (2016); see also In re
Watkins, 810 F.3d 375, 383-84 (6th Cir. 2015).

Johnson was de-

cided on June 26, 2015, and the Ninth Avery Motion was filed on
June 16, 2016, less than a year later.
Avery’s

argument

fails

because

he

argues

should apply to violations of 18 U.S.C. § 924(c).
guilty to three § 924(c) violations.
ment.)

that

Johnson

Avery pled

(See, e.g., Plea Agree-

Section 924(c)(1)(A) establishes penalties for an indi-

vidual who uses or carries a firearm “in relation to any crime
of violence,” or who possesses a firearm while “in furtherance
of any such crime.”

Section 924(c)(3) defines “crime of vio-

lence,” for purposes of § 924(c)(1)(A), as any “felony” that
“has as an element the use, attempted use, or threatened use of
physical force against the person or property of another,” or
that “by its nature, involves a substantial risk that physical
force against the person or property of another may be used in

35

the course of committing the offense.”

The second quoted compo-

nent is § 924(c)(3)’s “residual clause.”
Johnson addressed a different residual clause –– the one in
the definition of “violent felony” in the Armed Career Criminal
Act, 18 U.S.C. § 924(e) (the “ACCA”).

135 S. Ct. at 2563.

The

ACCA mandates a fifteen-year sentence for a defendant who unlawfully possesses a firearm after having sustained three prior
convictions “for a violent felony or a serious drug offense.”
18 U.S.C. § 924(e)(1).

The ACCA defines “violent felony” as

“any crime punishable by imprisonment for a term exceeding one
year” that (1) “has as an element the use, attempted use, or
threatened use of physical force against the person of another”;
(2) “is burglary, arson, or extortion, [or] involves the use of
explosives”; or (3) “otherwise involves conduct that presents a
serious potential risk of physical injury to another.”
§ 924(e)(2)(B).

Id.

The third quoted component is the ACCA’s “re-

sidual clause.”
Johnson held that imposing an increased sentence under the
ACCA’s residual clause violates due process.

The Supreme Court

has also determined, however, that Johnson did not invalidate
the identically worded residual clause in the “crime of violence”

definition

in

U.S.S.G.

§ 4B1.2.

Beckles

v.

States, No. 15-8544, 2017 WL 855781, at *3 (Mar. 6, 2017).

36

United

Avery’s challenge is not based on the ACCA residual clause
or the residual clause in U.S.S.G § 4B1.2’s crime-of-violence
definition.
clause.

His challenge is based on the § 924(c)(3) residual

That challenge must fail.

Binding Sixth Circuit prece-

dent holds that Johnson does not apply to the § 924(c)(3) residual clause.
Cir. 2016).

United States v. Taylor, 814 F.3d 340, 376–79 (6th
The Sixth Circuit has explained as follows:

[S]everal factors distinguish the ACCA residual clause from § 924(c)(3)(B).
First,
the statutory language of § 924(c)(3)(B) is
distinctly narrower, especially in that it
deals with physical force rather than physical injury.
Second, the ACCA residual
clause is linked to a confusing set of examples that plagued the Supreme Court in coming up with a coherent way to apply the
clause, whereas there is no such weakness in
§ 924(c)(3)(B).
Third, the Supreme Court
reached its void-for-vagueness conclusion
[in Johnson] only after struggling mightily
for nine years to come up with a coherent
interpretation of the clause, whereas no
such history has occurred with respect to
§ 924(c)(3)(B).
Finally, the Supreme Court
was clear in limiting its [Johnson] holding
to the particular set of circumstances applying to the ACCA residual clause, and only
some
of
those
circumstances
apply
to
§ 924(c)(3)(B).
Id. at 376.15
The upshot is that a criminal conviction can be a “crime of
violence” under § 924(c)(3)(B)’s residual clause, notwithstanding Johnson.

15

Taylor was decided before Beckles, but nothing in Beckles disturbs the quoted reasoning.

37

The Ninth Avery Motion also appears to suggest that, notwithstanding

Johnson,

violations

of

§ 2113(d) are not crimes of violence.
9.)

18

U.S.C.

§

1951

and

(Ninth Avery Mot. 4, 7–

The Court construes this as an argument that § 1951 viola-

tions and § 2113(d) violations do not qualify as crimes of violence

under

§ 924(c)(3)(A)’s

use-of-force

clause

or

under

§ 924(c)(3)(B)’s residual clause.
As to this argument, the Ninth Avery Motion is not timely.
The argument could have been raised within a year of the date on
which Avery’s judgment of conviction became final (or alternatively, as discussed in Section III.H above, during the period
from February 2012 and February 2013).

It is time-barred.

The Ninth Avery Motion is DENIED.
IV.

APPEAL ISSUES
Under 28 U.S.C. § 2253(a), 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.”

28 U.S.C. § 2253(c)(2).

No § 2255 movant may

appeal without this certificate.
The COA must indicate the specific issue or issues that
satisfy the required showing.

Id. § 2253(c)(3).

A “substantial

showing” is made when the movant demonstrates that “reasonable
jurists could debate whether (or, for that matter, agree that)

38

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
Landers v. Romanowski, No. 15-1753, 2017 WL 395976, at *2 (6th
Cir. Jan. 30, 2017).

A COA does not require a showing that the

appeal will succeed.

Miller-El, 537 U.S. at 337; Caldwell v.

Lewis, 414 F. App’x 809, 814-15 (6th Cir. 2011).
not issue a COA as a matter of course.

Courts should

Bradley v. Birkett, 156

F. App’x 771, 773 (6th Cir. 2005).
In this case, Avery is not entitled to relief.

He cannot

present a question of some substance about which reasonable jurists

could

differ.

The

Court

DENIES

a

certificate

of appealability.
The Sixth Circuit has held that the Prison Litigation 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).

Kincade v. Sparkman,

To appeal in forma pauperis

in a § 2255 case, and 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).
952.

Id. at

Rule 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).

39

Howev-

er, Rule 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 forma pauperis in the appellate
court.

See Fed. R. App. P. 24(a) (4)-(5).

In this case, because Avery is clearly not entitled to relief, the Court denies a COA.

It is CERTIFIED, pursuant to Fed-

eral 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.16
V.

CONCLUSION
The § 2255 Motion is DENIED.

Motions are DENIED.
The

Fifth,

Sixth,

The Second and Third Avery

The Fourth Avery Motion is DENIED as moot.
Seventh,

Eighth,

and

Ninth

Avery

Motions

are DENIED.
IT IS SO ORDERED this 29th day of March, 2017.

/s/ Samuel H. Mays, Jr.
_
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

16

If Avery 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.

40