United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTION FOR HABEAS RELIEF
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.
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).
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);
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.
Petitioner's ineffective assistance of counsel and due
process claims are time-barred and his arguments concerning
the Sentencing Guidelines and Dean are
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
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.
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
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.
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.
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
Petitioner is not entitled to sentencing relief ...