Berry v. United States of America

Filing 11

ORDER TO MODIFY THE DOCKET, ADDRESSING PENDING MOTION, DENYING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by Judge S. Thomas Anderson on 6/20/2016. (Anderson, S.)

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

GERALD BERRY,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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Cv. No. 2:14-cv-02486-STA-cgc
Cr. No. 2:05-cr-20293-01-JDB

ORDER TO MODIFY THE DOCKET,
ADDRESSING PENDING MOTION,
DENYING MOTION PURSUANT TO 28 U.S.C. § 2255,
DENYING CERTIFICATE OF APPEALABILITY,
CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Before the Court is the motion pursuant to 28 U.S.C. § 2255 (“§ 2255 Motion”) filed by
Movant, Gerald Berry, Bureau of Prisons register number 20559-076, an inmate at the Federal
Correctional Institution in Otisville, New York (§ 2255 Mot., Berry v. United States, No. 2:14cv-02486-STA-cgc (W.D. Tenn.), ECF No. 1) and Berry’s motion to withdraw his § 2255
Motion and his motion to withdraw the motion to withdraw. (Mot. to Withdraw § 2255 Mot.,
id., ECF No. 3; Mot. to Withdraw Request to Withdraw, id., ECF No. 4.) For the reasons stated
below, the Court GRANTS Berry’s motion to withdraw his request to withdraw his § 2255
Motion and DENIES the § 2255 Motion.

I.

BACKGROUND
A.

Case Number 05-20293

On August 16, 2005, a federal grand jury returned a two-count indictment against Berry,
Tracy Campbell and Quanda Rufus. (Indictment, United States v. Berry, No. 2:05-cr-20293-01STA (W.D. Tenn.), ECF No. 1 (sealed).) Count 1 alleged that, in or about July 2003, Berry and
Campbell, aided and abetted by others, both known and unknown, devised and executed a
scheme and artifice to defraud First Tennessee Bank by attempting to negotiate a counterfeit
First Tennessee Bank check drawn on an account styled Clifton G. or Helen M. Evans, made
payable to Campbell in the amount of $820.40, in violation of 18 U.S.C. §§ 1344 and 2. Count 2
alleged that all defendants attempted to negotiate at First Tennessee Bank a counterfeit check
drawn on an account styled Gwen M. Christiansen, d.b.a. Builders’ Floors & Interiors, made
payable to Campbell in the amount of $894.56, in violation of 18 U.S.C. §§ 1344 and 2.
Pursuant to a written plea agreement, Berry appeared before United States District Judge
J. Daniel Breen on March 29, 2006, to plead guilty to Count 1 of the indictment.

(Plea

Agreement, id., ECF No. 58.)1 At a hearing on September 14, 2006, Judge Breen sentenced
Berry to a term of imprisonment of fifty-one months, to run concurrent to the sentence imposed
in Case Number 05-20295, and to be followed by a three-year period of supervised release.
(Min. Entry, United States v. Berry, No. 2:05-cr-20293-01-JDB (W.D. Tenn.), ECF No. 91.)
Judgment was entered on September 18, 2006. (J. in a Criminal Case, id., ECF No. 94 (sealed).)
The United States Court of Appeals for the Sixth Circuit affirmed Berry’s sentence. United
States v. Berry, No. 06-6370 (6th Cir. Apr. 22, 2008). Berry did not file a motion pursuant to 28
U.S.C. § 2255.
1

The plea agreement also resolved the charges in United States v. Berry, No. 2:05-cr20295-JDB (W.D. Tenn.) (“Case Number 05-20295”).
2

B.

Case Number 05-20295

On August 16, 2005, the grand jury returned a second indictment against Berry.
(Indictment, United States v. Berry, No. 05-cr-20295-JDB (W.D. Tenn.), ECF No. 1.) Count 1
charged that, beginning on or about March 7, 2003, and continuing through April, 2003, Berry,
aided and abetted by other persons, devised a scheme or artifice to defraud First Tennessee Bank
by obtaining checks belonging to customers of First Tennessee; completing the checks in the
name of Gerald Belew, an alias of Berry; and cashing the checks using false identification.
Specifically, on or about March 7, 2003, Berry attempted to negotiate at First Tennessee Bank
counterfeit check number 5281 made payable to Gregory Belew, in the amount of $680.00,
drawn on an account styled Joe Anne Nicholson bearing the forged signature of the account
holder, in violation of 18 U.S.C. §§ 1344 and 2. Count 2 charged that, on or about April 4, 2003,
Berry attempted to negotiate at First Tennessee counterfeit check number 2237 made payable to
Gregory Belew, in the amount of $694.75, drawn on an account styled Jennifer or Erik Pekar,
bearing the forged signature of the account holder, in violation of 18 U.S.C. §§ 1344 and 2.
Count 3 charged that, on or about April 18, 2003, Berry attempted to negotiate at First Tennessee
Bank counterfeit check number 6104, made payable to Gerald Belew, in the amount of $580.60,
drawn on an account styled Simpson Dunn & Associates bearing the forged signature of the
account holder, in violation of 18 U.S.C. § 1344 and 2.
The plea agreement that Berry signed on March 29, 2006, required him to plead guilty to
Count 1 of the indictment in Case Number 05-20295. (Plea Agreement, id., ECF No. 33; Guilty
Plea Hr’g Tr., id., ECF No. 45 (sealed).) On September 14, 2006, Judge Breen sentenced Berry
to a term of imprisonment of fifty-one months, to run concurrent to the sentenced imposed in
Case Number 05-20293, at to be followed by a three-year period of supervised release. (Min.

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Entry, id., ECF No. 39; Sentencing Hr’g Tr., id., ECF No. 44 (sealed).) Judgment was entered
on September 29, 2006. (J. in a Criminal Case, id., ECF No. 40 (sealed).)
C.

The Supervised Release Violation

On May 13, 2011, the Probation Office filed a Petition for Warrant or Summons for
Offender Under Supervision, which charged Berry with violating the conditions of his
supervised release due to his arrest on April 13, 2011, by the Mid-South Electronic Crimes Task
Force on two counts of forgery, identity theft and two counts of theft of property over $500.
(Pet. for Warrant or Summons for Offender Under Supervision, United States v. Berry, No. 2:05cr-20293-01-JDB (W.D. Tenn.), ECF No. 121.)2 Judge Breen conducted a supervised release
violation hearing in Case Numbers 05-20293 and 05-20295 on October 20, 2011, at which Berry
entered an Alford plea to the violation. Judge Breen imposed a sentence of twenty-seven months
for each of the forged checks that Berry cashed, with the sentences to run consecutively for a
total term of imprisonment of fifty-four months. (Min. Entry, United States v. Berry, No. 2:05cr-20293-01-JDB (W.D. Tenn.), ECF No. 133; 10/20/2011 Hr’g Tr., id., ECF No. 137.) A
judgment on the supervised release violation was entered on October 21, 2011. (J. on Supervised
Release Violation, id., ECF No. 134 (sealed).)
Berry took a direct appeal of the sentence on the supervised release violation. On appeal,
Berry argued, inter alia, that Judge Breen violated Federal Rule of Criminal Procedure
11(b)(1)(B) by failing to advise him of the maximum sentence and the possibility of consecutive

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The conduct that formed the basis for the revocation hearing was the subject of a third
federal indictment against Berry, United States v. Berry, No. 2:11-cr-20221-01-STA (W.D.
Tenn.) (“Case Number 11-20221”). Berry subsequently pled guilty to Count 1 of the indictment
in Case Number 11-20221 and was sentenced to a term of imprisonment of 78 months, with that
sentence to be served consecutively to the 54-month sentence for the supervised release
violations. (Am. J., id., ECF No. 107 (sealed).)
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sentences before accepting his Alford plea. The Sixth Circuit affirmed Berry’s sentence on the
supervised release violation, reasoning as follows:
Without addressing the applicability of Rule 11 to supervised release
revocation proceedings, we find that Berry has not met his burden of
demonstrating that he would not have pleaded no contest if the court had
informed him of the maximum possible penalty. He makes no such assertion in
his appellate brief, and the record shows that Berry was, in fact, aware that he
faced a possible seventy-two month sentence. Before entering his pleas, Berry
informed the court that he had reviewed the revocation petition. Attached to the
revocation petition was the violation worksheet, which specifically stated that
“the statutory maximum term of imprisonment is 36 months each, for an
aggregate total term of imprisonment of 72 months.” Furthermore, prior to the
imposition of sentence, the government explained that the court could sentence
Berry to a maximum of seventy-two months of imprisonment, and the court
subsequently reiterated that Berry could receive a maximum term of thirty-six
months with respect to each violation. Berry at no time indicated that he was
unware that he faced such a penalty, or that he no longer wished to enter an Alford
plea. Accordingly, Berry has failed to show plain error warranting relief.
Slip op. at 2-3, United States v. Berry, Nos. 11-6318, -6319 (6th Cir. Dec. 14, 2012) (citation
omitted).
D.

Case Number 14-2486

On June 23, 2014, Berry filed his pro se § 2255 Motion, which was titled
“MEMORANDUM OF LAW IN SUPPORT OF APPLICATION TO VACATE, SET ASIDE
OR CORRECT SENTENCE UNDER TITLE 28 U.S.C. § 2255.” (§ 2255 Mot., Berry v. United
States, No. 2:14-cv-02486-STA-cgc (W.D. Tenn.), ECF No. 1.)3 In his § 2255 Motion, Berry
raises the following issues:

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Movant’s § 2255 Motion is not filed on the official form, as required by Rule 2(c) of the
Rules Governing Section 2255 Proceedings for the United States District Courts (Ҥ 2255
Rules”). Movant also did not comply with Rule 2(a)(5) of the § 2255 Rules, which requires that
a § 2255 motion must “be signed under penalty of perjury by the movant or by a person
authorized to sign it for the movant.” The Court has not ordered Movant to file an amended
motion on the official form that is signed under penalty of perjury because the § 2255 Motion
presents a purely legal issue.
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1.

“Whether the District Court complied with Fed. R. Crim. P. 32 during
Gerald L. Berry’s supervised release violation proceeding” (§ 2255 Mot.
at 6, Berry v. United States, No. 2:14-cv-02486-STA-cgc (W.D. Tenn.),
ECF No. 1 (emphasis omitted)); and

2.

“Whether the District Court properly sentenced Gerald L. Berry” (id.
(emphasis omitted)).

On June 30, 2014, Berry filed a motion seeking leave to withdraw this § 2255 Motion
because of the pendency of another § 2255 motion he had filed addressing his conviction in Case
Number 11-20221. (Mot. to Withdraw § 2255 Mot., id., ECF No. 3.) On January 15, 2015,
Berry filed a motion seeking leave to withdraw his motion to withdraw and reinstate the instant §
2255 Motion. (Mot. to Withdraw Request to Withdraw, id., ECF No. 4.)
On June 22, 2015, a letter from Berry to the Clerk seeking information about the status of
the matter was docketed. (Letter, id., ECF No. 6.) A second letter to the Clerk was docketed on
July 24, 2015 (Letter, id., ECF No. 7), and a third letter on January 26, 2016 (Letter, id., ECF
No. 8).4
II.

THE PENDING MOTIONS
Berry filed a motion to withdraw the instant § 2255 Motion because of his erroneous

belief that he cannot have pending both this motion and a § 2255 motion addressing Case
Number 11-20221. (Mot. to Withdraw § 2255 Mot., Berry v. United States, No. 2:14-cv-02486STA-cgc (W.D. Tenn.), ECF No. 3.) In his motion to withdraw the motion to withdraw, Berry
disclosed that he had learned that the pendency of a § 2255 motion addressing Case Number 1120221 does not preclude him from litigating a § 2255 motion addressing his supervised release

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The Clerk is directed to modify the docket to reflect that these filings are not motions.
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violation. (Mot. to Withdraw Request to Withdraw, id., ECF No. 4.) Berry’s most recent motion
is supported by a decision of the Sixth Circuit that denied as unnecessary his application to file a
second or successive § 2255 motion. (In re Berry, No. 14-6050 (6th Cir. Dec. 31, 2014), at ECF
No. 4-1.) The Court of Appeals reasoned that “[a]uthorization from this court is unnecessary
because Berry’s motion to vacate is the first motion to vacate challenging his supervised-release
revocation sentence.” (Slip op. at 2, id.)
For good cause shown, Berry’s motion to withdraw the motion to withdraw his § 2255
Motion is GRANTED. The Court will address the merits of Berry’s § 2255 Motion. The Clerk
is directed to terminate the motion to withdraw the § 2255 Motion.
III.

THE LEGAL STANDARD
Pursuant to 28 U.S.C. § 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 court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate, set aside or correct the
sentence.

“A prisoner seeking relief under 28 U.S.C. § 2255 must allege either (1) an error of
constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of
fact or law that was so fundamental as to render the entire proceeding invalid.” Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (internal quotation marks omitted).
A § 2255 motion is not a substitute for a direct appeal. See Ray v. United States, 721
F.3d 758, 761 (6th Cir. 2013). “[N]onconstitutional claims that could have been raised on
appeal, but were not, may not be asserted in collateral proceedings.” Stone v. Powell, 428 U.S.
465, 477 n.10 (1976). “Defendants must assert their claims in the ordinary course of trial and

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direct appeal.” Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996). This rule is not
absolute:
If claims have been forfeited by virtue of ineffective assistance of counsel,
then relief under § 2255 would be available subject to the standard of Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In those
rare instances where the defaulted claim is of an error not ordinarily cognizable or
constitutional error, but the error is committed in a context that is so positively
outrageous as to indicate a “complete miscarriage of justice,” it seems to us that
what is really being asserted is a violation of due process.
Id.
Even constitutional claims that could have been raised on direct appeal, but were not, will
be barred by procedural default unless the defendant demonstrates cause and prejudice sufficient
to excuse his failure to raise those issues previously. El-Nobani v. United States, 287 F.3d 417,
420 (6th Cir. 2002) (withdrawal of guilty plea); Peveler v. United States, 269 F.3d 693, 698-99
(6th Cir. 2001) (new Supreme Court decision issued during pendency of direct appeal); Phillip v.
United States, 229 F.3d 550, 552 (6th Cir. 2000) (trial errors). Alternatively, a defendant may
obtain review of a procedurally defaulted claim by demonstrating that he is “actually innocent.”
Bousley v. United States, 523 U.S. 614, 622 (1998).
“[A] § 2255 motion may not be employed to relitigate an issue that was raised and
considered on direct appeal absent highly exceptional circumstances, such as an intervening
change in the law.” Jones v. United States, 178 F.3d 790, 796 (6th Cir. 1999); see also DuPont
v. United States, 76 F.3d 108, 110 (6th Cir. 1996) (same).
After a § 2255 motion is filed, it is reviewed by the Court 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.” Rule 4(b), Rules Governing Section
2255 Proceedings for the United States District Courts (“§ 2255 Rules”). “If the motion is not

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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.” Id. The movant is
entitled to reply to the Government’s response. Rule 5(d), § 2255 Rules. The Court may also
direct the parties to provide additional information relating to the motion. Rule 7, § 2255 Rules.
“In reviewing a § 2255 motion in which a factual dispute arises, the habeas court must
hold an evidentiary hearing to determine the truth of the petitioner’s claims.” Valentine v.
United States, 488 F.3d 325, 333 (6th Cir. 2007) (internal quotation marks omitted). “[N]o
hearing is required if the petitioner’s allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or conclusions rather than statements of fact.”
Id. (internal quotation marks omitted). The movant has the burden of proving that he is entitled
to relief by a preponderance of the evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir.
2006).
IV.

ANALYSIS OF MOVANT’S CLAIMS
In Claim 1, Berry argues that the sentencing court failed to comply with Rule 32 of the

Federal Rules of Criminal Procedure during his supervised release revocation hearing. (§ 2255
Mot. at 6, Berry v. United States, No. 2:14-cv-02486-STA-cgc (W.D. Tenn.), ECF No. 1.) On
direct appeal, the Court of Appeals concluded that Berry had been advised of the maximum
sentence for the supervised release violation and the possibility of consecutive sentencing at the
time he pled guilty. (Slip op. at 2-3, United States v. Berry, Nos. 11-6318, -6319.) Berry cannot
relitigate that finding in his § 2255 Motion.
In Claim 2, Berry argues that the sentencing court lacked the authority to sentence him to
consecutive terms of imprisonment on his supervised release violation because he was originally
sentenced to concurrent terms of supervised release in his two criminal cases. (§ 2255 Mot. at

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11, 15-18, Berry v. United States, No. 2:14-cv-02486-STA-cgc (W.D. Tenn.), ECF No. 1.)
According to Berry, the maximum term of imprisonment that could have been imposed for the
supervised release violation is thirty-six months. (Id. at 17-18.)
Claim 2 is barred by procedural default because Berry could have, but did not, raise it on
direct appeal. “Sentencing challenges generally cannot be made for the first time in a postconviction § 2255 motion. Normally, sentencing challenges must be made on direct appeal or
they are waived.” Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001) (citation
omitted); see also O’Neil v. United States, No. 9202455, 1993 WL 157361, at *1 (6th Cir. May
13, 1993) (same). Berry has not attempted to establish cause for his procedural default.
* * * *
The motion, together with the files and record in this case “conclusively show that the
prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also Rule 4(b), § 2255 Rules. The
Court finds that a response is not required from the United States Attorney and that the motion
may be resolved without an evidentiary hearing. See Smith v. United States, 348 F.3d 545, 550
(6th Cir. 2003); Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999). Movant’s
conviction and sentence are valid and, therefore, his § 2255 Motion is DENIED. Judgment shall
be entered for the United States.
IV.

APPEAL ISSUES
Twenty-eight U.S.C. § 2253(a) requires the district court to evaluate the appealability of

its decision denying a § 2255 motion and to 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); see also Fed. R. App. P. 22(b).

No § 2255 movant may appeal without this

certificate.

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A COA may issue only if the petitioner has made a substantial showing of the denial of a
constitutional right, and the COA must indicate the specific issue(s) which satisfy the required
showing. 28 U.S.C. §§ 2253(c)(2) & (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, 990 (6th Cir. 2009) (per curiam) (same). 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) (same). Courts should not issue a COA as a matter of course. Bradley v. Birkett, 156 F.
App’x 771, 773 (6th Cir. 2005).
There can be no question that the issues raised in Movant’s § 2255 Motion are meritless
for the reasons previously stated. Because any appeal by Movant on the issues raised in his
Amended § 2255 Motion does not deserve attention, 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. Kincade v. Sparkman,
117 F.3d 949, 951 (6th Cir. 1997). Rather, to appeal in forma pauperis in a § 2255 case, and
thereby avoid the appellate filing fee required by 28 U.S.C. §§ 1913 and 1917, the prisoner must
obtain pauper status pursuant to Federal Rule of Appellate Procedure 24(a). Kincade, 117 F.3d
at 952. 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). However, Rule
24(a) also provides that if the district court certifies that an appeal would not be taken in good

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faith, or otherwise denies leave to appeal in forma pauperis, the 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, for the same reasons the Court denies a certificate of appealability, the Court
determines that any appeal would not be taken in good faith. It is therefore 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.5
IT IS SO ORDERED.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: June 20, 2016.

5

If Movant files a notice of appeal, he must also pay the full $505 appellate filing fee or
file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of
Appeals within 30 days.
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