Curruthers v. United States, Cv. No. 13-02556

CourtUnited States District Courts. 6th Circuit. Western District of Tennessee
Decision Date10 July 2020
Docket NumberCv. No. 13-02556,Cr. No. 09-20439


Cv. No. 13-02556
Cr. No. 09-20439


July 10, 2020


Before the Court are four motions. The first is Petitioner Tony Curruthers' July 22, 2013 pro se motion seeking to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (the "§ 2255 Motion"). (ECF No. 1.)1 The United States of America (the "Government") responded to Curruthers' § 2255 Motion on July 7, 2014. (ECF No. 5.) The second is Curruthers' August 18, 2015 pro se motion to supplement his § 2255 Motion in light of Johnson v. United States, 135 S. Ct. 2551 (2015) (the "Johnson Motion"). (ECF No. 8.) The Government responded to Curruthers' Johnson Motion on February 19, 2020. (ECF No. 32.) The third

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is Curruthers' August 27, 2019 pro se motion to appoint counsel. (ECF No. 20.) The Government has not responded to Curruthers' motion to appoint counsel. The fourth is Curruthers' October 21, 2019 pro se motion to amend his § 2255 Motion to add a claim in light of Rehaif v. United States, 139 S. Ct. 2191 (2019) (the "Rehaif Motion"). (ECF No. 24.) The Government responded to Curruthers' Rehaif Motion on February 19, 2020. (ECF No. 32.)

For the following reasons, Curruthers' motions are DENIED.

I. Background

On October 27, 2009, a federal grand jury in the Western District of Tennessee returned a two-count indictment against Curruthers, charging him with being a felon in possession of firearms, a violation of 18 U.S.C. 922(g). (Cr. ECF No. 3.) On November 10, 2010, a jury convicted Curruthers on the two counts charged in the indictment. (Cr. ECF Nos. 45, 46, 48.)

The Presentence Investigation Report ("PSR") calculated Curruthers' guidelines sentencing range under the 2010 edition of the United States Sentencing Commission Guidelines Manual (the "U.S.S.G."). (PSR ¶ 13.) Curruthers' base offense level was 24. (Id. ¶ 15.) He was subject to a four-level enhancement because one of the firearms he was found to possess had an obliterated serial number. (Id. ¶¶ 7, 16.) He was subject to another two-level enhancement because of reckless endangerment during flight. (Id. ¶¶ 10, 11, 19.) Curruthers was subject to

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a three-level enhancement because he was found to be an armed career criminal under the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA"). (Id. ¶ 23.) The PSR identified six prior convictions for violent felonies: (1) a 1986 Tennessee conviction for burglary in the third degree; (2) a 1991 Tennessee conviction for solicitation to commit robbery; (3) two 1991 Tennessee convictions for aggravated assault; (4) a 1993 Tennessee conviction for burglary of a building; and (5) a 2004 federal conviction for aiding and abetting armed bank robbery. (Id. ¶¶ 31, 39, 40, 41, 46.)

Curruthers' total offense level was 33 with a criminal history category of VI. (Id. ¶¶ 25, 79.) Curruthers' recommended guideline range was 235-293 months. (Id. ¶ 79.) On March 22, 2011, the Court sentenced Curruthers to 241 months in prison with a five-year term of supervised release. (Cr. ECF Nos. 55, 56.) Curruthers timely appealed his conviction and sentence. (Id. at 58.) The Sixth Circuit affirmed. United States v. Curruthers, 511 F. App'x 456 (6th Cir. 2013) (per curiam).

On July 22, 2013, Curruthers filed a pro se motion seeking to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, raising two claims of ineffective assistance of counsel. (ECF No. 1.) On July 7, 2014, the Government responded to Curruthers' § 2255 Motion. (ECF No. 5.) Before the Court ruled

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on Curruthers' initial § 2255 Motion, Curruthers filed a motion to amend his § 2255 Motion to add a Johnson claim. (ECF No. 8.) Curruthers filed another motion asking the Court to appoint counsel to help with Johnson review. (ECF No. 12.) After further filings reiterating his request for appointment of counsel and Johnson review, (see ECF Nos. 13, 14), the Court appointed counsel on June 24, 2016. (Cr. ECF No. 75.)

On June 27, 2016, Curruthers' appointed counsel filed a notice with the Court representing that he had reviewed Curruthers' case in light of Johnson and that he would not be filing a Johnson claim on Curruthers' behalf. (Cr. ECF No. 76.) Shortly after filing that notice, however, Curruthers' counsel filed a motion asking the Court to hold Curruthers' Johnson Motion in abeyance in light of Mathis v. United States, 136 S. Ct. 2243, 2245 (2016), and this Circuit's pending en banc review in United States v. Stitt, 637 F. App'x (6th Cir. 2016). (Cr. ECF No. 77.) The Government opposed holding Curruthers' Johnson Motion in abeyance. (See Cr. ECF No. 80.) On July 28, 2016, the Court granted Curruthers' abeyance motion, directed that the matter be held in abeyance, and administratively closed the case. (Cr. ECF No. 81.)

On July 10, 2017, Curruthers moved to reopen the case and his appointed counsel, having again reviewed Curruthers' case in light of the relevant case law, moved to withdraw. (Cr. ECF

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Nos. 82, 83.) Shortly after moving to withdraw, however, Curruthers' counsel asked to withdraw his motion to withdraw as counsel because of this Court's recent decision in Mitchell v. United States, 257 F. Supp. 3d 996 (W.D. Tenn. 2017), aff'd in part, vacated in part, and remanded, 905 F.3d 991 (6th Cir. 2018). (Cr. ECF No. 86.) The Court granted Curruthers' motion to withdraw his withdrawal motion, allowing Curruthers' counsel to continue to represent him. (Cr. ECF No. 87.)

On December 3, 2018, after this Court had been reversed in part in Mitchell, 905 F.3d 991, and after other developments in the relevant case law, Curruthers' counsel again moved to lift the stay and to withdraw as counsel. (Cr. ECF Nos. 88, 89.) On January 24, 2019, the Court granted that motion, lifted the stay, and allowed Curruthers' counsel to withdraw. (Cr. ECF Nos. 90, 91.)

On August 27, 2019, Curruthers filed another pro se motion to appoint counsel. (ECF No. 20; Cr. ECF No. 92.) Shortly after, on October 21, 2019, Curruthers filed an additional motion to amend his original § 2255 Motion, seeking to add a claim in light of Rehaif, 139 S. Ct. 2191. (ECF No. 24.) On January 9, 2020, the Court ordered the Government to respond to Curruthers' Johnson Motion. (ECF No. 27.) After a brief extension, on February 19, 2020, the Government responded to both Curruthers' Johnson Motion and his Rehaif Motion. (ECF No. 32.)

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II. Legal Standards

A. Section 2255

A prisoner in custody under sentence of a court established by [an] Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). "A prisoner seeking relief under 28 U.S.C. § 2255 must allege either: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quotation marks and citation omitted).

A § 2255 motion is not a substitute for a direct appeal. Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013). Claims not raised on direct appeal are procedurally defaulted and may not be raised on collateral review unless the petitioner shows cause and prejudice. See United States v. Frady, 456 U.S. 152, 167-68 (1982); Bousley v. United States, 523 U.S. 614, 621-22 (1998). Alternatively, a petitioner may obtain review of a procedurally defaulted claim by demonstrating his "actual innocence." Bousley, 523 U.S. at 622-23.

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One exception to these strict rules of procedural default is ineffective-assistance-of-counsel claims. There is no procedural default for the failure to raise an ineffective-assistance-of-counsel claim on direct appeal.2 See Massaro v. United States, 538 U.S. 500, 503-04 (2003); Huff v. United States, 734 F.3d 600, 606 (6th Cir. 2013) ("Claims of ineffective assistance of counsel are properly raised in a section 2255 motion.") (citations omitted). Ineffective-assistance-of-counsel claims brought under § 2255 are subject to the standard in Strickland v. Washington, 466 U.S. 668 (1984). See Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996).

Under Strickland, to establish that ineffective assistance of counsel deprived a defendant of his Sixth Amendment right to counsel, "the defendant must show that counsel's performance was deficient[] . . . [and] that the deficient performance prejudiced the defense." 466 U.S. at 687. "Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Id.

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To demonstrate deficient performance by counsel, a petitioner must demonstrate that "counsel's representation fell below an objective standard of reasonableness." Id. at 688. In considering a claim of ineffective assistance, a court "must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance. . . . The challenger's burden is to show 'that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.'" Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 687, 689). "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466...

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