Withers v. United States
Decision Date | 26 March 2015 |
Docket Number | Cr. No. 2:07-cr-20339-JPM,Cv. No. 2:11-cv-03134-JPM-dkv |
Court | U.S. District Court — Western District of Tennessee |
Parties | ARTHUR WITHERS, Movant, v. UNITED STATES OF AMERICA, Respondent. |
Before the Court is the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion") filed by Movant, Arthur Withers, Bureau of Prisons ("BOP") register number 22138-076, who is currently an inmate at the Federal Correctional Institution Beckley in Beaver, West Virginia (§ 2255 Mot., Withers v. United States, No. 2:11-cv-03134-JPM-dkv (W.D. Tenn.), ECF No. 1),1 and Withers' Motion for Extension of Time to Reply to the Government's Response Pursuant to 28 U.S.C. § 2255 and Motion to Amend Pursuant to Rules of Civil Procedure Rule 15(c)(1)(B) ( ) For the reasons stated below, the CourtGRANTS the Motion for Extension of Time, GRANTS leave to amend and DENIES Movant's § 2255 Motion.
On November 8, 2007, a federal grand jury returned a single-count indictment charging Withers, a convicted felon, with possessing a Beretta .32 caliber semi-automatic pistol on or about August 1, 2007, in violation of 18 U.S.C. § 922(g). (Indictment, United States v. Withers, No. 2:07-cr-20339-JPM (W.D. Tenn.), ECF No. 1.) The factual basis for this charge is stated in the presentence report ("PSR"):
(PSR ¶¶ 5-9.)
Pursuant to a written Plea Agreement, Withers appeared before this judge on April 24, 2009 to plead guilty to the sole count of the Indictment. (Min. Entry, United States v. Withers, No. 2:07-cr-20339-JPM (W.D. Tenn.), ECF No. 47; Plea Agreement, id., ECF No. 50.) On July 17, 2009, the Government filed a position paper that argued for an enhancement for obstruction of justice based on letters written by Withers that appeared to advise a potential witness how to testify at a suppression hearing. (Position of the United States at 1, id., ECF No. 52.) Notwithstanding this conduct, the Government took the position that Withers should be awarded a reduction for acceptance of responsibility. (Id. at 1-2.)
At a sentencing hearing on July 22, 2009, the Court sentenced Withers to a term of imprisonment of one hundred four months, to be followed by a three-year period of supervised release. (Min. Entry, United States v. Withers, No. 2:07-cr-20339-JPM (W.D. Tenn.), ECF No. 54; Sentencing Hr'g Tr. 61, 70, id., ECF No. 63.)2 In arguing against the enhancement for obstruction of justice, defense counsel stated that the letter (Sentencing Hr'g Tr. 4-5, United States v. Withers, No. 2:07-cr-20339-JPM (W.D. Tenn.), ECF No. 63.) The Court noted that there was no suppression hearing in the case but that an attempt is normally enough to enhance a defendant's sentence for obstruction of justice. (Id. at 6; see also id. at 19-20.) Judgment was entered on July 22, 2009. (J. in a Criminal Case, United States v. Withers, No. 2:07-cr-20339-JPM (W.D. Tenn.), ECF No. 56.)
The United States Court of Appeals for the Sixth Circuit affirmed Withers' sentence. United States v. Withers, 405 F. App'x 951 (6th Cir. 2010).
On December 28, 2011, Withers filed his pro se § 2255 Motion, accompanied by a legal memorandum. (§ 2255 Mot., Withers v. United States, No. 2:11-cv-03134-JPM-dkv (W.D. Tenn.), ECF No. 1; Mem., id., ECF No. 1-1.) The issues presented in Withers' § 2255 Motion are as follows:
On May 25, 2012, Withers submitted a letter to this judge and various letters he had received. (Letter, Withers v. United States, No. 2:11-cv-03134-JPM-dkv (W.D. Tenn.), ECF No. 2.)
In an order issued on December 21, 2012, the Court directed the Government to respond to the § 2255 Motion. (Order, id., ECF No. 3.) The order provided that "[t]he Government may limit its response to the third issue presented by Defendant, whether defense counsel was ineffective by recommending that Defendant plead guilty despite asserted misconduct by the police." (Id. at 1-2.)
On March 4, 2013, the Government filed the Response of the United States to Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 ("Answer"), which included the declaration of Movant's trial counsel, Eugene Laurenzi. (Answer, Withers v. United States, No. 2:11-cv-03134-JPM-dkv (W.D. Tenn.), ECF No. 6; Laurenzi Decl., id., ECF No. 6-1.) On May 29, 2013, Withers filed his reply, which was titled "Brief Motion To Vacate, Set Aside, or Correct Pursuant to 28 U.S.C. 2255 Pro Se" ("Reply"). (Reply, id., ECF No. 11.)3
On April 19, 2013, Withers filed a Motion to Amend Pursuant to Rules of Civil Procedure Rule 15(c)(1)(B). (Mot. to Amend, id., ECF No. 10.) The proposed amendment, which is not on the official form, contains additional argument in support of Claim 3. In the absence of objection by the Government, leave to amend is GRANTED. The Court will consider the additional arguments set forth in the amendment.
"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) (internal quotation marks omitted).
A § 2255 motion is not a substitute for a direct appeal. See Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013). "[N]onconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings." Stone v. Powell, 428 U.S. 465, 477 n.10 (1976). "Defendants must assert their claims in the ordinary course of trial and direct appeal." Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996). This rule is not absolute:
Even constitutional claims that could have been raised on direct appeal, but were not, will be barred by procedural default...
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