Berry v. United States, CRIMINAL CASE NO. 05-CR-20048

CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
Writing for the CourtMAGISTRATE JUDGE PATRICIA T. MORRIS
PartiesLEE HENRY BERRY, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
Decision Date04 September 2014
Docket NumberCIVIL CASE NO. 10-CV-12633,CRIMINAL CASE NO. 05-CR-20048

LEE HENRY BERRY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

CRIMINAL CASE NO. 05-CR-20048
CIVIL CASE NO. 10-CV-12633

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION

September 4, 2014


DISTRICT JUDGE THOMAS LUDINGTON
MAGISTRATE JUDGE PATRICIA T. MORRIS

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED that Petitioner's motion be DENIED and that the civil case be DISMISSED.

II. REPORT

A. Introduction

Petitioner Lee Henry Berry asks the Court to vacate his sentence, imposed on December 20, 2007, and recalculate it to accord with his conclusions. (Mot. to Vacate Sentence 2, Doc. 132 at 1.) His argument clusters various grievances under an umbrella ineffective assistance of counsel claim and also asserts additional grounds based on "actual innocence." (Id. at 14, 19, 28.) Unsatisfied with the fullness of his Motion, he also seeks leave to amend, not to reshape or refine his request, but rather to augment it. (Mot. to Amend Doc. 138.) Finally, after laboring through

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over fifty pages of argument, nearly clotted with caselaw citations, he now feels he needs counsel and requests that the Court appoint one for him. (Motion to Appoint Counsel Doc. (137.)

United States District Judge Thomas Ludington has referred all of the Motions to the undersigned. The Court concludes that pursuant to E.D. Mich. LR 7.1(e)(2), this motion is ready for report and recommendation without oral argument.

B. Background

In February 2000, Petitioner pleaded guilty in Bay County, Michigan, Circuit Court to one count of delivery of less than fifty grams of cocaine. (Brief in Support of Mot. to Vacate Sentence 1, Doc. 104 at 2.)1 Petitioner states that his probationary period stemming from that conviction concluded on June 18, 2004. (Id. at 4.) Approximately ten months later, on April 29, 2005, Petitioner was arrested and charged in state court with possession of cocaine, probation violation, and failure to give notice of his changed address. (Id. at 2.) On November 3, 2005, he pleaded guilty in Bay County Circuit Court and was sentenced to prison for seven-and-one-half to twenty years.

Four weeks after he was sentenced in state court, a federal grand jury in the Eastern District of Michigan indicted on four drug charges and two weapons charges stemming from the 2005 arrest. (Id. at 3.) Following a jury trial on those charges, Petitioner was convicted of three counts of possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a) and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On December 20, 2007, Petitioner was sentenced to concurrent terms of thirty years on each count, to run consecutively to an existing Michigan Department of Corrections' sentence. On appeal, the

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Sixth Circuit affirmed Petitioner's conviction and sentence. United States v. Berry, 565 F.3d 332 (6th Cir. 2009). The United States Supreme Court denied certiorari on October 5, 2009. Berry v. United States, 130 S. Ct. 275, 275 (2009).

Petitioner filed his first motion to vacate his federal sentence under 28 U.S.C. § 2255 on June 30, 2010. (Doc. 104.) Judge Thomas L. Ludington denied the motion and declined to issue a certificate of appealability. United States v. Berry, Nos. 05-20048, 10-12633, 2011 WL 1627902, at *3 (E.D. Mich. Apr. 29, 2011.) At the end of June, 2011, Berry sought a certificate of appealability from the Sixth Circuit. Berry v. United States, No. 11-1830, (6th Cir. June 30, 2011). The case was dismissed that August due to an unpaid filing fee, but his pauper status had not been revoked and consequently the court reinstated the case in October. His appeal proceeded until December 27 when the court denied his certificate and later denied his motion for reconsideration. He then sought sentence reduction based on amendments to the Sentencing Guidelines; the District Court denied these motions on June 11, 2014. United States v. Berry, No. 05-cr-20048, 2014 WL 2607367, at *1, 6 (E.D. Mich. June 11, 2014).

He now claims that counsel was ineffective and he presents actual innocence arguments. In particular, he says counsel failed to (1) offer evidence that Petitioner's prior convictions were invalid, (2) object to Count Five in the indictment, and (3) request dismissal of multiplicitous charges in the indictment. (Brief in Support of Mot. to Vacate, Doc. 133 at 1-44.) Using these same arguments and rationales, he also asserts that he was actually innocent of all four convictions. (Id.) His amended motion simply adds that he should be resentenced because the Court used impermissible sources to determine the nature of his prior convictions. (Mot. to Amend, Doc. 138 at 2-6.) Finally, feeling "ill-equipped" to further develop his arguments, he requests appointment of counsel. (Mot. to Appoint Counsel, Doc. 137 at 1.) Berry was imprisoned in Leavenworth,

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Kansas when he filed the petition. (Doc. 132 at 1.) He is currently confined in Lewis Run, Pennsylvania. Federal Bureau of Prisons, Inmate Locator, http://www.bop.gov/inmateloc/ (last visited Aug. 1, 2014).

Though labeled a section 2255 motion, Berry actually presents the Court with a 2241 petition: he argues that section 2255 is inadequate and that he may bring the 2241 petition because he is actually innocent. (Doc. 133 at 1-7.) Indeed, in his "motion" and on the first page of his brief, he requests relief under section 2241. (Mot. to Vacate Doc. 132 at 2; Doc. 133 at 1.) Because he was confined elsewhere, I suggest that the Court lacks jurisdiction to decide his petition. Transfer would be appropriate if it served the interests of justice, but his claims are not cognizable in any jurisdiction and transfer is thus unnecessary.

C. Governing Law and Analysis

1. General Law

a. Section 2255 Motions and the Savings Clause

To prevail on a § 2255 motion "'a petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict.'" Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). Non-constitutional errors are generally outside the scope of section 2255 relief. United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000). A movant can prevail on a section 2255 motion alleging non-constitutional error only by establishing a "'fundamental defect which inherently results in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due process.'" Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal quotation marks omitted)).

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A court is required to notify the United States attorney, grant a hearing to determine the issues, and make findings of fact and conclusions of law on a § 2255 motion "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief . . . ." 28 U.S.C. § 2255(b).

The Antiterrorism and Effective Death Penalty Act of1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (April 24, 1996), contains a one-year statute of limitations for petitions seeking to vacate, set aside or correct federal sentences. 28 U.S.C. § 2255(f).2 "Prior to [the AEDPA], a party could bring a § 2255 motion at any time." United States v. Simmonds, 111 F.3d 737, 744 (10th Cir. 1997). The one-year statute of limitations runs from the date on which the judgment of conviction becomes final. 28 U.S.C. § 2255. When a § 2255 petitioner does not pursue a direct appeal to the court of appeals, his or her conviction becomes final on the date the time for filing such an appeal expires. Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004); United States v. Cottage, 307 F.3d 494, 499 (6th Cir. 2002). When a petitioner does not seek a writ of certiorari after the circuit court dismisses the appeal, "§ 2255's one-year limitation period begins to run when the time for seeking such review expires." Clay v. United States, 537 U.S. 522, 532

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(2003). This occurs one year and sixty-nine days after the appeals court issued its mandate or one year and ninety days after the court of appeals entered its judgment. Id.

Petitioners seeking leave to file a second or successive 2255 motion must meet additional hurdles. Id. § 2255(h). The motion can proceed only after a panel of the court of appeals certifies that it contains at least one of two elements: (1) new evidence that "would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense," or (2) "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." Id. But see King v. United States, 63 F. App'x 793, 795 (6th Cir. 2003) (upholding the district court's denial of successive motion despite its failure to transfer to the Sixth Circuit for successive motion authorization); McCall v. United States, 27 F. App'x...

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