United States v. Allen
| Decision Date | 13 May 2020 |
| Docket Number | Criminal Case No. 14-20191 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ERVIN ALLEN, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Honorable Linda V. Parker
On May 5, 2015, Defendant Ervin Allen ("Defendant") pleaded guilty pursuant to a Rule 11 plea agreement to two counts of a Superseding Indictment charging him with the use of a firearm in the commission of a crime of violence in violation of 18 U.S.C. § 924(c) and Hobbs Act robbery in violation of 18 U.S.C. §1951. In accordance with the plea agreement, the Court sentenced Defendant to a term of imprisonment of 228 months on October 27, 2015. The matter is presently before the Court on Defendant's motion and amended motion to vacate his sentence under 28 U.S.C. § 2255 (ECF Nos. 58, 68), which are fully briefed. (ECF Nos. 63, 64, 71, 72.) Defendant has filed several additional motions for leave to amend his motion (ECF Nos. 73-78), as well as motions for the appointment of counsel (ECF Nos. 50, 72) and a motion for transcripts and investigative reports (ECF No. 53).
The Government initially charged Defendant in a January 13, 2014 Complaint with four counts of violating the Hobbs Act and three counts of using a firearm during and in relation to a crime of violence. (ECF No. 1.) The charges arose from robberies of various convenience food stores, a pharmacy, and a check cashing store in November and December 2013 and January 2014. A federal grand jury issued an Indictment on April 2, 2014 (ECF No. 11), and a Superseding Indictment was entered on March 18, 2015, charging Defendant with five counts of using a firearm during and in relation to a crime of violence and six Hobbs Act violations. (ECF No. 34.)
On July 2, 2014, the Honorable Terrance Berg (to whom the case was then-assigned) entered a stipulated order allowing Defendant to obtain an independent expert to conduct a neuropsychological examination to explore a possible mental health related defense. (ECF No. 17.) Defendant claimed that as a result of a serious head injury on or about July 14, 2013, he suffered from global amnesia from the events that occurred between November 21, 2013 (the date of the first robbery) to January 2, 2014 (the date of his final robbery, arrest, and initialconfession). (See ECF No. 35 at Pg ID 126.) Defendant intended to introduce this evidence in support of a diminished capacity defense at trial. (Id.)
After a neuropsychologist examined Defendant and submitted his report, Defendant's counsel requested a competency exam. Following that exam and a competency hearing on January 22, 2015, Judge Berg held that Defendant was competent to stand trial. (ECF No. 27.) The Government thereafter moved to exclude Defendant's expert evidence at trial, which this Court denied after the matter was reassigned. (ECF No. 38.) The Court also granted the Government's request to have its own expert examine Defendant. (Id.)
On May 5, 2015, Defendant pleaded guilty pursuant to a Rule 11 Plea Agreement to two counts of the Superseding Indictment: Count One charging him with use of a firearm during and in relation to a crime of violence under 18 U.S.C. §§ 924(c)(1)(A) and 924(c)(1)(A)(ii), and Count Two charging him with violating the Hobbs Act, 18 U.S.C. § 1951. The factual basis for Defendant's plea is set forth in the agreement (see Plea Agreement at 3, ECF No. 41 at Pg ID 177.) These facts included that during the January 2, 2014 robbery of a Check 'n Go in Davison, Michigan, Defendant pointed a firearm at the back of a customer's head and demanded money from an employee. (Id.) Defendant further agreed that he committed robberies on five additional occasions and brandished a weapon at employees each time. (Id. at 3-5, Pg ID 177-79.) During one robbery, Defendantpointed a firearm at a gas station clerk and told him, "I am going to fucking kill you" and "you are going to die at work." (Id. at 4, Pg ID 178.)
The Plea Agreement reflects that Defendant's sentencing guidelines range was 97-121 months on Count Two, with a consecutive 84 months on Count One. (Id.) The parties agreed to a sentence of 228 months (19 years). (Id. at 7, Pg ID 181.) The agreement includes the following language:
defendant is stipulating to a sentence of 144 months on count two, which he understands to be consecutive to the sentence on count one. Defendant understands that he is stipulating to a total sentence of 19 years (228 months). Defendant understands that this sentence is above the sentencing guideline range for count two, but that the stipulated sentence is the result of the incorporation of the facts of the relevant conduct described ... above. Defendant has negotiated and agreed upon this term of imprisonment in order to avoid the imposition of additional mandatory terms of imprisonment based on additional violations of 18 U.S.C. § 924(c). Based on his stipulated relevant conduct, defendant agrees that the sentence of 228 months is sufficient but not greater than necessary to comply with the purposes of 18 U.S.C. § 3553(a)(2).
(Id. (emphasis in original).)
At the plea hearing, Defendant stated under oath that he was voluntarily waiving certain rights by pleading guilty. (See Hr'g Tr., ECF No. 61.) He acknowledged receiving and signing the Rule 11 Plea Agreement. (Id. at 14, Pg ID 313.) Defendant also stated that he agreed to the terms of the plea agreement as set forth by the prosecutor on the record, including the factual basis for his guilt on Counts One and Two, the relevant conduct, and that his sentence "may not be moreor less than 228 months, or 19 years." (Id. at 18, Pg ID 317.) The Court specifically asked Defendant if the description of how he conducted the offenses was an accurate recitation of what happened, and he responded "Yes." (Id. at 23, Pg ID 322.)
On October 27, 2015, the Court sentenced Defendant to a term of imprisonment of 84 months on Count 1, to be served consecutively to a term of imprisonment of 144 months on Count 2. (ECF No. 47.) The Court entered its Judgment on November 5, 2015. (Id.) Defendant did not file a direct appeal.
On November 15, 2016, Defendant filed a motion to vacate his sentence which lacked a supporting brief (ECF No. 48), a motion for the appointment of counsel (ECF No. 50), a motion for extension of time to file his § 2255 motion (ECF No. 52), and a motion for transcripts and investigative reports. (ECF No. 53.) The Court granted Defendant's request for more time to file his § 2255, and he filed the motion on January 30, 2017. (ECF No. 58.)
In his initial § 2255 motion, Defendant claims that his trial counsel provided ineffective assistance by: (a) failing to file a motion to suppress his confessions; (b) agreeing to adjourn the preliminary examination without his consent or knowledge; (c) "stipulating to a plea [he] previously said [he] did not want;" and (d) failing to properly inform him of the consequences of his plea agreement and the rights being waived and incorrectly informing him that his sentence could be departedfrom. (Id.) Specifically as to Defendant's third and fourth grounds for relief, he claims his trial counsel: (1) informed him that he would receive a downward departure for medical and psychiatric reasons; (2) did not make him aware that he was waiving his appeal rights and the significance of doing so; and (3) did not make him aware that the plea agreement removed the judge's discretion to modify his sentence. Defendant also argues in the motion that his confessions were involuntary, the warrant to search his home lacked probable cause, and the affidavit in support of the search warrant contained false statements. (Id.)
Defendant thereafter moved and was granted leave to file an amended motion (ECF Nos. 66, 67), which he filed on June 6, 2018. (ECF No. 68.) In his amended motion, Defendant argues that his conviction can no longer be considered a "crime of violence" under the Supreme Court's decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). Defendant maintains that his conviction under § 924 is now invalid.
Between February 11 and July 3, 2019, Defendant filed three additional motions seeking to amend his § 2255 petition. (ECF Nos. 73-78.) In each proposed amended petition, Defendant claims that the amendment is intended to "restate or clarify" claims presented in ground four of his initial motion. In Defendant's first two proposed amended motions, he raises several challenges to his sentence, which he claims his counsel was ineffective for not raising.Specifically, in his proposed amended petition filed February 11, 2019, and the first proposed amended petition he filed on July 3, 2019, Defendant contends that counsel was ineffective in not challenging the grouping of his § 924(c) counts. (ECF Nos. 74, 76.) In his final proposed amended motion, also filed on July 3, 2019, Defendant adds several factual details in support of his challenges to his arrest, the voluntariness of his confession, and the affidavit supporting the search of his home. (ECF No. 78.)
Defendant's motions to amend his § 2255 motions are governed by Rule 15 of the Federal Rules of Civil Procedure. See 28 U.S.C. § 2242; see also Rule 12 of the Federal Rules Governing Section 2255 Proceedings in the United States District Courts. Rule 15 provides that a court should "freely give leave" to amend "when justice so requires." Fed. R. Civ. P. 15(a)(2). Nevertheless, the Supreme Court has instructed that leave to amend should be denied when, among other reasons, the amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962). "Amendment of a complaint is futile when the proposed amendment would not permit...
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