United States v. Clark

637 F. App'x 206
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 4, 2016
DocketNo. 14-5154
StatusPublished
Cited by15 cases

This text of 637 F. App'x 206 (United States v. Clark) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Clark, 637 F. App'x 206 (6th Cir. 2016).

Opinion

HOOD, District Judge.

This ease presents the question whether the district court abused its discretion by denying a motion to amend a petition for relief under 28 U.S.C. § 2255 because the new claim did not relate back to a timely-filed claim. Thomas H. Clark was found guilty of multiple counts relating to firearm and drug trafficking offenses. The district court sentenced Clark as a career offender, under § 4B1.1 of the Guidelines [207]*207Manual, to 420 months’ imprisonment. The district court relied on Clark’s prior convictions for possession of cocaine with intent to distribute, reckless endangerment by dangerous weapon, and reckless endangerment by vehicle. On June 14, 2010, Clark filed a § 2255 motion alleging ineffective appellate counsel for failure to dispute his career-offender status in light of Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and United States v. Baker, 559 F.3d 443 (6th Cir.2009). The district court granted Clark habeas relief based on the ineffective assistance of his appellate counsel for not challenging his career offender enhancement, and found that Clark was not a career offender. Prior to the issuance of an amended judgment of sentence, petitioner filed a motion to amend his § 2255 motion to request that the court review the drug amounts attributed to him used for sentencing purposes. Because the district court correctly held that the motion to amend was outside the one-year statute of limitations and the proposed amendment did not relate back to the claim of ineffective assistance of counsel, we affirm the district court’s decision.

I.

On April 18, 2005, Clark was convicted by a jury of conspiring to distribute at least five grams of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(B) (Count One); distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count Two); aiding and abetting the possession of at least five grams of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2 (Count Five); aiding and abetting the possession of a firearm in furtherance of the drug trafficking crime charged in Count Five, in violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2 (Count Six); possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g) (Count Seven); and possessing marijuana, in violation of 21 U.S.C. § 844 (Count Ten). United States v. Clark, 328 Fed.Appx. 992, 994-95 (6th Cir.2009).

A. Presentence Report

Clark’s presentence report1 (“PSR”) determined that U.S.S.G. § 2D1.1 provided a base offense level of 34, because Clark was held responsible for 171 grams of cocaine base. PSR ¶¶ 28, 29, 35. Because Clark was classified as a career offender for his prior felony convictions, the presentence report increased his total offense level to 37 and his criminal history category to VI, under § 4B1.1. PSR ¶ 52-55. The presen-tence report listed his guideline range as 420 months to life imprisonment. PSR ¶ 52.

B. Sentencing

On September 19, 2005, the district court held a sentencing hearing. At sentencing, Clark renewed his previously raised objection to drug amounts as calculated in his PSR. Clark’s trial counsel stated his objection was moot because Clark was determined to be a career offender and therefore the drug amount would not impact the guideline range. The district court agreed, and did not rule on the objection. Clark was sentenced to an aggregate term of 420 months’ incarceration — 60 months for possessing a firearm in furtherance of a drug trafficking offense and 360 months on the remaining counts. Clark appealed, and his conviction and sentence were affirmed.

[208]*208Clark filed a timely motion to vacate his sentence pursuant to 28 U.S.C. § 2255. On August 26, 2013, the district court held an evidentiary hearing and determined that Clark is entitled to relief under 28 U.S.C. § 2255 because ineffective appellate counsel prejudiced Clark in that he should not have received the career offender enhancement, because his prior reckless endangerment convictions do not constitute “crimes of violence” under § 4B1.2. Without the enhancement, Clark’s offense level was reduced to 34 based on the drug weight of 171 grams of cocaine base, and his crimihal history category was reduced to V. Clark had objected to the inclusion of the drug amount in his PSR, but had not included the objection in the § 2255 motion. Clark filed a motion to amend the § 2255 motion to reduce the drug quantity used for sentencing. In an order dated January 31, 2014, the district court denied the amendment, but granted relief on Clark’s claim of ineffective assistance of appellate counsel relative to the career offender enhancement. In accordance with the Guidelines and PSR used at the initial sentencing, and with a reduced criminal history category calculated without the career-offender enhancement, the court held that the Guidelines range was 235 to 293 months’ imprisonment, plus the consecutive 60-month term for the 18 U.S.C. § 924(c) violation. Clark’s effective Guidelines range became 295 to 353 months. The district court amended Clark’s sentence to 295 months’ imprisonment and granted him a certificate of ap-pealability (“COA”) to appeal only the amended sentence. After Clark filed a motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2), the district court reduced his sentence to 190 months’ imprisonment, and specifically held that all other aspects of the January 31, 2014 judgment remained unchanged.

On appeal, Clark argues that the district court erred in denying his Motion to Amend Petition for Relief under 28 U.S.C. § 2255, thereby preventing an opportunity for his previously un-ruled upon sentencing objection regarding the drug quantity to be heard. He requests that the Court vacate the imposed sentence and remand for resentencing after permitting the amendment.

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Bluebook (online)
637 F. App'x 206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-clark-ca6-2016.