United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PETITIONER'S “MOTION TO
CLARIFY OR CORRECT JUDGMENT IN A CRIMINAL CASE.” (Doc.
COHN UNITED STATES DISTRICT JUDGE
a criminal case which has long since closed.
Defendant/Petitioner Jerry Gonyea (Petitioner) is serving a
sentence of 351 months following his conviction on bank
robbery and firearms charges. Before the Court is
Petitioner's “Motion to Clarify or Correct Judgment
in a Criminal Case.” (Doc. 118). For the reasons that
follow, the motion is DENIED.
1994, Petitioner and an accomplice robbed two banks during
which Petitioner brandished firearms and terrorized those
present, including children, with threats of death.
Petitioner was also on state parole at the time of the
offenses. Petitioner initially plead guilty to two counts of
bank robbery, in violation of 18 U.S.C. § 2113 and two
counts of using or carrying a firearm during the commission
of a felony, in violation of 18 U.S.C. § 924(c).
Following protracted pre-trial proceedings, during which
Petitioner withdrew his plea and attempted, unsuccessfully,
to pursue a diminished capacity defense, Petitioner again
plead guilty in 1996 to the same four counts. The Rule 11
agreement called for a sentence at the bottom end of the
guidelines, 351 months. Petitioner also reserved the right to
appeal the preclusion of his diminished capacity defense. As
noted above, the Court sentenced Petitioner to 351 months.
Petitioner appealed, arguing that he should have been allowed
to present a diminished capacity defense. The Court of
Appeals for the Sixth Circuit affirmed Petitioner's
conviction. United States v. Gonyea, 140 F.3d 649
(6th Cir. 1998).
twelve years later, on August 25, 2010, Petitioner filed a
motion for relief from judgment under Fed.R.Civ.P. 60(b) in
which he challenged his sentence under § 924(c). The
Court denied the motion on October 28, 2010. See
Doc. 106. Petitioner did not appeal. Thereafter, almost two
years later, on August 16, 2012, Petitioner filed a motion
under § 2255, challenging the computation of his
sentence and raising complaints regarding the conditions of
his confinement. The Court denied the motion. See
Doc. 116. Petitioner did not appeal.
in 2015, Petitioner filed a petition under 28 U.S.C. §
2241. Petitioner argued that that he is entitled to relief
(1) based on the Supreme Court's decisions in
Missouri v. Frye, 132 S.Ct. 1399 (2012), and
Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012),
trial counsel was ineffective for misadvising Petitioner
regarding the prospects of raising certain defenses at trial,
(3) his sentence is too long, and (4) he has failed to
receive sentencing credit for time served in the state
system. Gonyea v. United States, 15-10116. The
matter was before a different judge in this district who
denied the petition. See Doc. 5 in No. 15-10116.
Petitioner appealed. The Sixth Circuit affirmed. Gonyea
v. Terris, No. 15-1199 (6th Cir. Sept, 10,
in 2015, Petitioner filed a petition for a writ of audita
querela. Goneya v. United States, 15-10268
which was assigned to the undersigned. Petitioner raised the
same claims in his § 2241 motion. The Court denied the
petition. See Doc. 2 in No. 15-10268. Petitioner
appealed. The Sixth Circuit affirmed. Gonyea v. United
States, No. 15-1227 (6th Cir. Oct. 8, 2015).
December 2017, Petitioner filed a motion under § 2255.
(Doc. 119), seeking relief based on the Supreme Court's
decision in Dean v. United States, 137 S.Ct. 1170
(2017). Because it was Petitioner's second § 2255
motion, the Court transferred it to the Sixth Circuit. (Doc.
126). Around the same time, Petitioner filed the instant
motion to clarify or correct the judgment, in which he again
says that the Bureau of Prisons has declined to give him
credit on his federal sentence for time served on his state
initial matter, Petitioner have moved under Fed. R. Crim. P.
36 which provides for the correction of clerical errors in a
judgment. Petitioner is arguing that there is a legal error
in his sentence; thus, Rule 36 does not apply.
as the government notes, Petitioner is making the same
sentencing credit argument he made in prior motions. The
Court has already explained why his argument lacks merit.
First, the Sixth Circuit has made clear that “the power
to grant credit for time served lies solely with the Attorney
General and the Bureau of Prisoners.” United States
v. Crozier, 259 F.3d 503, 520 (6th Cir.
2001). Second, Petitioner's request is based on a
misunderstanding of § 924(c) as it existed at the time
of his sentence. The section of § 924(c) Petitioner
refers to did not exist at the time of his sentence.
Petitioner was sentenced to 51 months concurrent for the bank
robberies plus a mandatory consecutive sentence of 5 and 20
years, respectively, on the § 924(c) convictions. At the
time of Petitioner's sentencing, the statute forbid
sentences under § 924(c) from running concurrently with
any other sentence. Thus, Petitioner cannot get credit for
time spent in state custody on his § 924(c) sentences.