Spearman v. United States

          ORDER DENYING MOTION FOR HABEAS RELIEF

          TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.

         Petitioner Frederick Robert Spearman pled guilty to armed bank robbery with forced accompaniment and possession of a firearm while committing a crime of violence. He was sentenced by this Court in 2016 to serve 200 months in the custody of the Bureau of Prisons and is now again before the Court on a motion to vacate, correct, or modify that sentence under 28 U.S.C. § 2255. Petitioner asserts that his offense should not be considered a crime of violence for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(c). He further claims that sentencing counsel was ineffective in failing to object to the sentencing enhancement mandated by § 924(c) and that he was denied procedural due process when this Court allegedly failed to consider the mandatory minimum in deciding on an appropriate sentence. For reasons described below, the Court will dismiss with prejudice Petitioner's claims for ineffective assistance of counsel and due process violations because they are procedurally barred. The Court will also deny with prejudice on the merits his claim for sentencing relief under Sessions v. Dimaya, 138 S.Ct. 1204 (2018) and United States v. Davis, 139 S.Ct. 2319 (2019).^[1]

         BACKGROUND

         Petitioner pled guilty to armed bank robbery, 18 U.S.C. § 2113(b), armed bank robbery with forced accompaniment, 18 U.S.C. § 2113(d), (e), and possession of a firearm during or in relation to a crime of violence, 18 U.S.C. § 924(c), a provision of the Armed Career Criminal Act (“ACCA”). Consequently, he was sentenced on June 23, 2016 to serve 140 months on the armed robbery counts and 60 months on the firearm count, to run consecutively for a total sentence of 200 months' imprisonment. See ECF No. 26 (Judgment). More than one year later, on August 30, 2017, Petitioner filed an untimely motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 asserting claims for ineffective assistance of counsel and violation of his rights under the Fifth Amendment's Due Process Clause. See ECF No. 27. The Court subsequently issued an amended judgment correcting a clerical error in the original judgment concerning the date on which Petitioner's sentence was to begin. See ECF No. 33 (Am. Judgment); Fed. R. Crim. P. 36; ECF No. 34 (Court's Feb. 13, 2018 Order). The Court never adjudicated Petitioner's first § 2255 motion on the merits. Instead, after entering the amended judgment, the Court denied the motion as moot and instructed Petitioner to refile it by January 17, 2019 if he wished the Court to consider it on the merits. ECF No. 34. Consistent with those instructions, Petitioner filed a second § 2255 motion on October 24, 2018 reasserting claims for ineffective assistance of counsel and violation of due process and raising a new argument about the potential impact of Dimaya on his sentence. ECF No. 38. The Court construes the second-filed § 2255 petition as a motion to amend the original petition, which was never adjudicated on its merits. A motion to amend is not a second and successive § 2255 application when it is filed before the initial § 2255 application is adjudicated on the merits. See Clark v. United States, 764 F.3d 653, 658 (6th Cir. 2014). Accordingly, Petitioner did not require permission from the Sixth Circuit to file the habeas petition now before the Court. See 28 U.S.C. § 2255(h); § 2244(b)(3)(A).

         DISCUSSION

         A prisoner serving a sentence imposed by a federal court may challenge that sentence under 28 U.S.C. § 2255 “upon the ground that [it] was imposed in violation of the Constitution or laws of the United States . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” As relief, the prisoner may move the court which imposed the sentence to correct, vacate, or set it aside. The law is clear that “§ 2255 claims that do not assert a constitutional or jurisdictional error are generally cognizable only if they involve ‘a fundamental defect which inherently results in a complete miscarriage of justice.'” Snider v. United States, 908 F.3d 183, 189 (6th Cir. 2018) (quoting Davis v. United States, 417 U.S. 333, 346 (1974) (internal quotations omitted)). This standard is met only in exceptional circumstances; not every alleged error of law can be raised on a § 2255 motion. Hill v. United States, 368 U.S. 424, 428 (1962); Davis, 417 U.S. at 346.

         A. Petitioner's ineffective assistance of counsel and due process claims are time-barred and his arguments concerning the Sentencing Guidelines and Dean are unavailing.

         Petitioner's claims for ineffective assistance of counsel and violation of his rights under the Fifth Amendment's Due Process Clause are not timely because they should have been raised before the one-year statute of limitations governing his § 2255 application expired on July 8, 2017. 28 U.S.C. § 2255(f). The amended judgment issued to correct a clerical error in the original judgment did not reset the one-year statute of limitations; Petitioner's ineffective assistance of counsel and due process claims are procedurally barred.

         The one-year statute of limitations applicable to § 2255 motions begins to run from one of four dates: the date the judgment of conviction became final; the date on which the right asserted was initially recognized by the Supreme Court and made retroactive; the date unconstitutional impediments to the prisoner's ability to file the motion for sentencing relief were removed; or the date on which the facts supporting the petitioner's claims could have been discovered through the exercise of due diligence-whichever is latest. See 28 U.S.C. § 2255(f). Here, Petitioner's ineffective assistance and due process claims are not based on any newly recognized right, nor does he allege any unconstitutional impediment to his ability to file those claims. Similarly, he makes no assertion that these claims are based on evidence not previously available. Accordingly, the one-year statute of limitations for his ineffective assistance of counsel and due process claims began to run on the date his conviction became final.

         Generally, a conviction becomes final upon completion of direct review. Johnson v. United States, 457 Fed.Appx. 462, 464 (6th Cir. 2012). Where, as here, a federal criminal defendant does not appeal his conviction, the judgment becomes final when the time during which he could have appealed expires, which is 14 days after the entry of judgment, or July 8, 2016. See Fed. R. App. P. 4(b)(1). Petitioner's one-year statute of limitations accordingly would have expired on July 8, 2017, one year after the date his judgment of conviction became final. But Petitioner did not file his initial § 2255 motion until August 30, 2017, six weeks after the statute of limitations had already run. See ECF No. 27. Those claims are therefore procedurally defaulted.

         The amended judgment did not reset the one-year statute of limitations governing Petitioner's § 2255 claims. In Magwood v. Patterson, 561 U.S. 320, 341-42 (2010), the Supreme Court observed that “where . . . there is a new judgment intervening between the two habeas petitions, . . . an application challenging the resulting new judgment is not ‘second or successive' at all” and therefore does not require permission from the appellate court to file. (internal quotations omitted). The Sixth Circuit has interpreted this to mean that entry of a new judgment or sentence “normally resets the statute of limitations clock.” King v. Morgan, 807 F.3d 154, 159 (6th Cir. 2015). But not all amended judgments reset the clock. An amended judgment that “merely correct[s] a record to accurately reflect the court's actions . . . would not be a new sentence that resets the statute of limitations under § 2244(d)(1)(A).” Crangle v. Kelly, 838 F.3d 673, 680 (6th Cir. 2016); see In re Stansell, 828 F.3d 412, 420 (6th Cir. 2016) (explaining that where an amended judgment is issued simply to correct a clerical error, the corrected entry should not be considered a new judgment for § 2255 purposes); Marmolejos v. United States, 789 F.3d 66 (2d Cir. 2015) (“We conclude that an amended judgment merely correcting errors that were clerical does not constitute a ‘new judgment'). Accordingly, the amended judgment issued in Petitioner's case, which merely corrected a clerical mistake pursuant to Rule 36 of the Federal Rules of Criminal Procedure, did not reset the statute of limitations on Petitioner's § 2255 motion. Because the one-year period Petitioner had to file his § 2255 motion on the ineffective assistance of counsel and due process violations expired on July 8, 2017, Petitioner's original § 2255 motion was not filed until that statute of limitations had expired, and the amended judgment did not restart the statute of limitations, those claims are procedurally barred.

         Besides, as set forth in the government's brief, Petitioner would not be entitled to sentencing relief even if his due process claim was timely. His use of a firearm was not, as Petitioner urges, “double-counted” under the United States Sentencing Guidelines because he was convicted of two armed bank robberies and the weapon enhancement was applied only to one while the other bank robbery formed the basis of the 18 U.S.C. § 924(c) conviction. This is consistent with the Sentencing Guidelines, which instruct that “if a defendant is convicted of two armed bank robberies, but is convicted under 18 U.S.C. § 924(c) in connection with only one of the robberies, a weapon enhancement would apply to the bank robbery which was not the basis for the 18 U.S.C. § 924(c) conviction.” U.S.S.G. § 2K2.4, App. Note 4. Plaintiff's sentence was therefore appropriate under the Sentencing Guidelines.

         Similarly, even if his due process claim was timely, Petitioner would not be entitled to sentencing relief under Dean v. United States, 137 S.Ct. 1170, 1176-77 (2017). As an initial matter, the Supreme Court in that case held that § 924(c) does not prevent a sentencing court from considering the mandatory minimum imposed by § 924(c) when calculating a defendant's overall sentence. But Dean does not require that a sentencing court consider that mandatory minimum in crafting an appropriate sentence for the predicate offenses. United States v. Johnson, 702 Fed.Appx. 349, 363 (6th Cir. 2017), cert. denied, 138 S.Ct. 1591 (2018). Additionally, several courts in this district have held that Dean is not retroactively applicable to cases on collateral review. See, e.g., Whitsell v. United States, No. 17-cv-12691, 2018 WL 317869 (E.D. Mich. Jan. 8, 2018); United States v. Clark, No. 2:14-cr-20199, 2018 WL 3207975 (E.D. Mich. June 29, 2018); Simmons v. Terris, No. 17-cv-11771, 2017 WL 3017536 (E.D. Mich. Jul. 17, 2017). Accordingly, Petitioner cannot obtain relief under Dean.

         B. Petitioner is not entitled to sentencing relief ...