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United States v. McCloud

United States District Court, E.D. Michigan, Southern Division

June 12, 2018

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
FREDERICK LAMARR MCCLOUD, Defendant-Petitioner.

          OPINION AND ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 (DOC. 300)

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE.

         Petitioner 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.

         I. Factual Background and Procedural History

         On 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.

         On 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).

         On 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.

         On 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.

         On 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).

         On 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.

         II. Standard of Law

         Rule 15 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 as untimely.

         III. Analysis

         Petitioner 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 erroneous information.

         In 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 ยง 2255(f)(4); ...


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