United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITIONER'S MOTION TO
VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C.
§ 2255 (DOC. 300)
CARAM STEEH UNITED STATES DISTRICT JUDGE.
Frederick McCloud is serving a 276-month sentence after
pleading guilty to bank robbery and related counts. Now
before the court is Petitioner's motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255 (Doc. 300), which this court construes as a motion to
amend his earlier filed § 2255 motion. For the reasons
set forth below, the court considers Petitioner's motion
on the merits as he is entitled to amend as a matter of
right, but the motion shall be DENIED as the claims are
untimely, procedurally defaulted, and lack merit. Petitioner
filed his motion pro se, but an attorney filed a reply brief
on his behalf.
Factual Background and Procedural History
September 24, 2001, Petitioner pleaded guilty to (1) bank
robbery in violation of 18 U.S.C. § 2113(a); (2)
brandishing a firearm in furtherance of a crime of violence
in violation of 18 U.S.C. § 924(c)(1)(A)(ii); (3) using
a destructive device in furtherance of a crime of violence in
violation of 18 U.S.C. § 924(c)(1)(B)(ii); and (4) being
a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g). On November 6, 2003, Petitioner was sentenced
to a total of 300-months imprisonment. (Doc. 116). Petitioner
appealed his sentence.
August 2, 2005, the Sixth Circuit remanded the case to this
court with direction to merge the § 924(c) counts and
impose a new sentence. Upon remand, the court appointed Jill
Price to represent Petitioner and set resentencing for
November 28, 2005. (Doc. 156). On November 28, 2005, prior to
resentencing, Petitioner filed a motion to disqualify counsel
and represent himself. (Doc. 157). The Court granted
Petitioner's request but appointed attorney Jill Price as
stand-by counsel, and adjourned resentencing until August 16,
2006. (Doc. 203-2). At resentencing, the court sentenced
Petitioner to a 276-month sentence, reflecting merger of the
§ 924(c) counts. (Doc. 196). Petitioner appealed,
alleging that his convictions were improperly merged. The
Sixth Circuit affirmed. (Doc. 212).
January 3, 2014, Petitioner filed a “Motion for Nunc
Pro Tunc Order.” (Doc. 280). In that motion, Petitioner
argued that (1) his sentences were improperly merged and that
(2) he should have received an adjustment under U.S.S.G.
§ 3E1.1 for acceptance of responsibility. Id.
April 2, 2014, this court denied relief, and construed that
motion as a petition under 28 U.S.C. § 2255. (Doc. 282).
The court found that (1) the motion was untimely; (2)
petitioner had not presented any evidence of ineffective
assistance of counsel; and (3) petitioner's claims
regarding his sentence had been addressed on appeal.
Id. Petitioner appealed the order. (Doc. 294). On
June 24, 2015, the Sixth Circuit affirmed this Court's
holding as to the Petitioner's sentencing claims, and the
denial of Petitioner's Motion for “Nunc Pro Tunc
Order, ” but held that Petitioner's motion could
not be construed as a first motion under 28 U.S.C. §
2255 because the court did not warn him of the consequences
of such a filing. Id.
January 15, 2016, Petitioner filed a motion pro se under 28
U.S.C. § 2255 (January § 2255 motion). (Doc. 296).
He alleged (1) ineffective assistance of counsel because his
attorney failed to discuss the amended presentence report
(“PSR”) with him; and (2) argued that his motion
was not time-barred based on the Supreme Court's recent
decision in Johnson v. United States, 135 S.Ct. 2551
(2015). Id. On February 8, 2016, while his first
§ 2255 motion was pending, Petitioner filed a second
§ 2255 motion (February § 2255 motion) pro se that
raised six additional claims. (Doc. 300).
March 2, 2016, this court denied Petitioner's January
§ 2255 motion as untimely and without merit, and
transferred the February § 2255 motion to the Sixth
Circuit for authorization as a successive petition. (Doc.
302). Petitioner did not appeal. On May 16, 2016, the Sixth
Circuit held that the transfer of the February § 2255
motion was erroneous, noting that it should have been
construed as a motion to amend Petitioner's January
§ 2255 motion. (Doc. 304). Thus, the Court now considers
whether Petitioner should be allowed to amend or supplement
his January § 2255 motion and finds that he may do so.
Standard of Law
of the Federal Rules of Civil Procedure governs a motion for
leave to amend a 28 U.S.C. § 2255 motion. Clark v.
United States, 764 F.3d 653, 661 (6th Cir. 2014). Rule
15(a)(1)(B) allows for amendment “once as a matter
of course” without leave of court at any time
before the movant is served with the government's
responsive pleading. In this case, one month after Petitioner
filed his first § 2255 motion on January 15, 2016,
Petitioner filed his second § 2255 motion on February 8,
2016, prior to the government's responsive pleading.
Accordingly, Petitioner may amend his January, 2016 §
2255 motion and the court considers his February, 2016 §
2255 motion on the merits. However, the claims raised in the
second filed motion are time-barred, procedurally defaulted,
and without merit. Also, Petitioner cannot rely on the
relation back doctrine because the claims he raised in his
initial January, 2016 § 2255 motion were also dismissed
raises the following six claims in his § 2255 motion:
(1) that his remaining conviction under § 924(c) cannot
be sustained in light of the vagueness doctrine announced in
Johnson, supra, which Petitioner claims
applies retroactively to his conviction; (2) that his right
to the effective assistance of counsel was violated when
counsel (a) failed to review the amended PSR with him prior
to sentencing, (b) failed to investigate the base offense
level under the Guidelines, (c) failed to object to the
calculation of his criminal history score, and (d) failed to
object to a two level enhancement based on a
co-defendant's conduct; (3) that his right to Due Process
was violated when the court failed to respond to his
objections to the PSR and to assess § 3553(a) factors at
resentencing; (4) that his right to Due Process was violated
when the district court failed to recalculate the sentencing
guidelines upon remand for resentencing; (5) that his right
to Due Process was violated when the court failed to explain
its chosen sentence at the August 16, 2006 resentencing
hearing; and (6) sentenced and resentenced him based on
response, the Government argues that Petitioner's claims
are barred by the statute of limitations, lack merit, and
that, by not raising certain claims on appeal, Petitioner has
procedurally defaulted those claims. Petitioner, with the
assistance of an attorney, filed a reply to the
Government's response arguing that (1) his request for
relief is timely under § 2255(f)(3) due to the recent
Supreme Court decision in Johnson; (2) that his
claims of ineffective assistance of counsel during his
original sentencing hearing are timely under §