Curruthers v. United States

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

)

TONY CURRUTHERS )

a/k/a TONY NEELY, )

)

Petitioner, )

)

v. ) Cv. No. 13-02556

) Cr. No. 09-20439

UNITED STATES OF AMERICA, )

)

Respondent. )

)

)

ORDER

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

1 Citations to (ECF No. ##) refer to this civil case, Curruthers v.

United States, No. 2:13-cv-02556 (W.D. Tenn.). Citations to (Cr. ECF

No. ##) refer to the criminal case United States v. Curruthers, No.

2:09-cr-20439 (W.D. Tenn.).

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

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

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

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.)

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.

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.

2 Unless the record below is “sufficiently developed,” this Circuit

normally leaves ineffective-assistance-of-counsel claims to a district

court to address in the first instance under § 2255 petitions. See,

e.g., United States v. Libbey-Tipton, 948 F.3d 694, 698 (6th Cir.

2020); United States v. Mann, 552 F. App’x 464, 471 (6th Cir. 2014);

United States v. Williams, 612 F.3d 500, 508 (6th Cir. 2010).

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 U.S. at 689.

To demonstrate prejudice, a petitioner must establish “a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

Id. at 694. “‘A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’” Humphress

v. United States, 398 F.3d 855, 859 (6th Cir. 2005) (quoting

Strickland, 466 U.S. at 694). “In assessing prejudice under

Strickland, the question is not whether a court can be certain

counsel’s performance had no effect on the outcome or whether it

is possible a reasonable doubt might have been established if

counsel acted differently. . . . The likelihood of a different

result must be substantial, not just conceivable.” Richter, 562

U.S. at 111-12 (citations omitted).

B. Motion to Amend

A motion to amend a § 2255 motion is governed by Federal

Rule of Civil Procedure 15. Clark v. United States, 764 F.3d

653, 661 (6th Cir. 2014); see also Mayle v. Felix, 545 U.S. 644,

655 (2005). Claims not brought in an original § 2255 motion or

filed within the relevant one-year statute of limitations, see

Reese v. United States, 2016 WL 1050719, at *2 (E.D. Tenn. Mar.

16, 2016) (citations omitted), vacated and remanded on other

grounds, 727 F. App’x 149 (6th Cir. 2018), are barred unless

they “relate back” under Rule 15(c)(1)(B) to a claim raised in

the original motion. See Evans v. United States, 284 F. App’x

304, 305, 313 (6th Cir. 2008); cf. Cowan v. Stovall, 645 F.3d

815, 819 (6th Cir. 2011). A claim relates back to the date of

an original pleading if the original and amended pleadings

“‘ar[i]se out of the [same] conduct, transaction, or

occurrence . . . .” Fed. R. Civ. P. 15(c)(1)(B). An untimely

motion to amend or supplement a § 2255 motion cannot relate back

if it raises a new ground for relief based on different facts

than the claims raised in the original § 2255 motion. Berry v.

United States, 2017 WL 401269, at *10 (W.D. Tenn. Jan. 30, 2017)

(citing Anderson v. United States, 39 F. App’x 132, 136 (6th

Cir. 2002)); see also Mayle, 545 U.S. at 664. “[I]f a movant

seeks to ‘introduce a new legal theory based on facts different

from those underlying the timely claims,’ the amendment [does

not] relate back and [is] time-barred.” Berry, 2017 WL 401269,

at *10 (quoting United States v. Hicks, 283 F.3d 380, 388 (D.C.

Cir. 2002)).

Alternatively, a Court may deny leave to amend if the

amendment would be futile. Parchman v. SLM Corp., 896 F.3d 728,

737-38 (6th Cir. 2018) (citing Foman v. Davis, 371 U.S. 178, 182

(1962)). “A proposed amendment is futile if the amendment could

not withstand a Rule 12(b)(6) motion to dismiss.” Id. (citing

Beydoun v. Sessions, 871 F.3d 459, 469 (6th Cir. 2017)); United

States v. McShan, 2019 WL 6974392, at *2 (S.D. Ohio Dec. 20,

2019) (denying motion to amend a § 2255 petition because the

amended motion did not state a claim on which habeas relief could

be granted).

C. ACCA’s Framework

Under the ACCA, a defendant is an armed career criminal and

subject to a mandatory minimum sentence of 180 months in prison

if he is convicted of violating 18 U.S.C. § 922(g) and has at

least three prior convictions for “violent felon[ies]” and/or

“serious drug offense[s].” 18 U.S.C. § 924(e)(1); Braden v.

United States, 817 F.3d 926, 932 (6th Cir. 2016) (citation

omitted). Without the prior qualifying convictions, a defendant

convicted under § 922(g) is subject to a statutory maximum

sentence of 120 months. 18 U.S.C. § 924(a)(2).

The ACCA defines a “violent felony” as “any crime punishable

by imprisonment for a term exceeding one year” that: (a) “has as

an element the use, attempted use, or threatened use of physical

force against the person of another” (the “use-of-force clause”);

(b) “is burglary, arson, or extortion, [or] involves use of

explosives” (the “enumerated-offenses clause”); or

(c) “otherwise involves conduct that presents a serious

potential risk of physical injury to another” (the “residual

clause”). 18 U.S.C. § 924(e)(2)(B).

In Johnson, the Supreme Court held that the residual clause

of the ACCA is unconstitutionally vague. 135 S. Ct. at 2557-58;

see also United States v. Priddy, 808 F.3d 676, 683 (6th Cir.

2015) (“The government . . . cannot enhance [a defendant’s]

sentence based on a prior conviction that constitutes a violent

felony pursuant only to the residual clause.”) (subsequent

history omitted). Johnson did not invalidate sentencing

enhancements under ACCA’s use-of-force clause or enumerated-

offenses clause. 135 S. Ct. at 2563; see also Priddy, 808 F.3d

at 683 (“[A] defendant can still receive an ACCA-enhanced

sentence based on the statute’s use-of-force clause or

enumerated-offense[s] clause[.]”).

“When determining which crimes fall within . . . the violent

felony provision” of the ACCA, “federal courts use the

categorical approach.” United States v. Covington, 738 F.3d

759, 762 (6th Cir. 2014) (quotation marks omitted); see also

Mathis, 136 S. Ct. at 2248. Using that approach, courts “look[

] only to the statutory definitions of the prior offenses, and

not to the particular facts underlying those convictions.”

Taylor v. United States, 495 U.S. 575, 600 (1990).

“[T]here are two steps in applying the categorical approach

to determine whether a prior conviction constitutes . . . a

violent felony under the ACCA.” Covington, 738 F.3d at 763.

“First, a court must ask whether the statute at issue is

divisible by determining if the statute lists ‘alternative

elements.’” Id. (quoting Descamps v. United States, 570 U.S.

254, 277 (2013)). “[A] divisible statute, listing potential

offense elements in the alternative, renders opaque which element

played a part in the defendant’s conviction.” Descamps, 1570

U.S. at 260.

If a statute is divisible, meaning that it “comprises

multiple, alternative versions of the crime,” a court uses a

“modified categorical approach” and may “examine a limited class

of documents,” such as the indictment and jury instructions, “to

determine which of a statute’s alternative elements formed the

basis of the defendant’s prior conviction.” Id. at 2283-84.

“Where the defendant has pled guilty, these so-called Shepard

documents may include the ‘charging document, written plea

agreement, transcript of plea colloquy, and any explicit factual

finding by the trial judge to which the defendant assented.’”

United States v. Denson, 728 F.3d 603, 608 (6th Cir. 2013)

(quoting Shepard v. United States, 544 U.S. 13, 16 (2005)).

“[T]he question is whether the court documents establish that

the defendant necessarily admitted the elements of a predicate

offense through his plea.” United States v. McMurray, 653 F.3d

367, 377 (6th Cir. 2011) (subsequent history, quotation marks,

and citation omitted).

After having determined which of a divisible statute’s

alternative elements formed the basis of the defendant’s prior

conviction, the second step in the categorical approach requires

the court to “ask whether the offense the statute describes, as

a category, is a [violent felony].” Covington, 738 F.3d at 763.

Under the categorical approach, a court must compare the elements

of the statute under which the defendant was convicted with “the

elements of the ‘generic’ crime -- i.e., the offense as commonly

understood.” Descamps, 570 U.S. at 257. The prior conviction

will qualify as a predicate offense for purposes of the ACCA

only if the elements of the statute of conviction are the same

as, or narrower than, those of the generic offense. United

States v. Brown, 195 F. Supp. 3d 926, 930 (E.D. Mich. 2016)

(citing Descamps, 570 U.S. at 257). “If the offense ‘sweeps

more broadly’ and ‘criminalizes a broader swath of conduct’ than

[would] meet these tests, then the offense, as a category, is

not a [violent felony].” Covington, 738 F.3d at 764 (quoting

Descamps, 570 U.S. at 258, 260, 270-74).

III. Analysis

A. Section 2255 Motion

In his § 2255 Motion, Curruthers alleges two grounds for

relief: (1) his counsel was ineffective for failing to object to

prosecutorial misconduct and failing to request a curative

instruction for prosecutorial misconduct at trial and for failing

to raise the prosecutorial misconduct on direct appeal;3 and

(2) his counsel was ineffective for failing to request a

competency hearing before trial. (ECF No. 1.)

1. Timeliness

A § 2255 motion is timely if it is filed within one year of

“the date on which the judgment of conviction becomes final.”

28 U.S.C. 2255(f)(1). When a federal criminal defendant appeals

his conviction, if affirmed, his conviction becomes final for

§ 2255 purposes upon the expiration of the 90-day period during

3 Curruthers was represented by the same counsel at trial and on

appeal. (See ECF No. 5-1.)

which the defendant could have petitioned for certiorari to the

Supreme Court, even when no certiorari petition was filed.

Sanchez-Castellano v. United States, 358 F.3d 424, 426–27 (6th

Cir. 2004) (citing Clay v. United States, 537 U.S. 522, 532

(2003)).

This Circuit issued its opinion affirming Curruthers’

conviction on January 10, 2013. Curruthers, 511 F. App’x 456;

(Cr. ECF No. 69). Curruthers filed his § 2255 Motion on July

22, 2013. (ECF No. 1.) Curruthers’ § 2255 Motion is timely.

2. Ineffective Assistance of Counsel – Prosecutorial

Misconduct

Curruthers contends that his counsel was ineffective by

failing to object to a statement the prosecutor made in opening

statement; by failing to request a contemporaneous curative

instruction after the prosecutor made a specific statement in

closing argument; and by failing to raise a prosecutorial

misconduct claim on direct appeal. (See ECF No. 1-1 at 3-7.)

Curruthers argues that his counsel was ineffective for failing

to object to and failing to request a curative instruction when

the prosecutor said he believed Curruthers was “casing whatever

store or wherever [sic] they were at the time and I think it’s

a serious case because what could have happenned [sic] or what

was about to happen.” (Id. at 3-4). Curruthers argues that the

failure to object to the opening statement and the failure to

request a contemporaneous curative instruction during closing

argument “allowed the prosecution to mislead the jury that

[Curruthers] was casing a store and that a robbery was about to

occur, thereby, infecting the trial with unfairness as to make

the resulting conviction a denial of due process.” (Id. at 4.)

Curruthers also argues that his counsel was ineffective for

failing to raise prosecutorial misconduct arguments on appeal

based on the prior statements. (Id. at 3, 7.)

The statements to which Curruthers refers, as shown in the

trial transcript, are the prosecutor’s statements that:

(1) You’ll hear that Officer Boyce thought that the

defendant looked suspicious, that they were driving at

a very slow pace, as though they were casing wherever

[sic] store or wherever they were at the time. (Cr.

ECF No. 65 at 45:8-11) (opening statement).

(2) You know, looking at all the evidence in this case,

it’s a very serious case and it’s a serious case

because there are two loaded firearms that are

involved, but I think it’s a more serious case because

what could have happened or what was about to happen.

(Cr. ECF No. 66 at 253:18-22) (closing argument).

Curruthers’ counsel objected to the latter statement under

Federal Rule of Evidence 404(b). (See id. at 253:23-260:18.)

The Court ultimately overruled that objection but was “concerned”

that it “might mislead the jury” and counseled the prosecution

to “tread gently” and argue “carefully.” (Id. at 256:19-260:18.)

The Court implied that it would cure any adverse effect that the

prosecutor’s comment might have had by issuing jury instructions

that Curruthers was only on trial for possessing the firearms at

issue and that any statement made by counsel was not evidence.

(See id.) (“I’m still concerned about the confusion. I guess I

could partly solve that in the instructions.”); (“I think you

can argue it if you argue it carefully, but I think I'm also

going to have to come back behind you probably.”).

After arguments, the Court instructed the jury, in relevant

part:

This defendant is not on trial for any act or conduct

alleged in the indictment or not alleged in the indictment.

Let me say that again. This defendant is not on trial for

any act or conduct not alleged in the indictment. Another

way of saying that is he is on trial only for the conduct

alleged in the two counts of the indictment. (Id. at

285:19-24.)

As I stated, you must consider only the evidence I have

admitted in the case. The term “evidence” includes the

testimony of the witnesses, the exhibits admitted in the

record, any facts stipulated, and any facts of which the

Court has taken judicial notice. Remember that anything

the lawyers say or argue is not evidence in the case. It

is your own recollection and interpretation of the evidence

that controls. What the lawyers say is not binding on you.

(Id. at 286:8-16.)

I caution you that you’re here to determine from the

evidence in this case whether the defendant is guilty or

not guilty. The defendant is on trial only for the specific

offenses alleged in the indictment. (Id. at 297:21-24.)

Curruthers argues that these instructions were insufficient and

that his counsel should have requested a contemporaneous curative

instruction at trial. (ECF No. 1-1 at 3-4.) He also argues

that counsel was deficient for failing to raise this issue on

direct appeal. (Id. at 3, 7.)

Counsel is alleged to have been ineffective: (1) by failing

to object to the prosecutor’s statement in opening statement;

(2) by failing to request a contemporaneous curative instruction

after the prosecutor’s statement in closing argument; and (3) by

failing to raise a prosecutorial misconduct claim on direct

appeal. The Court’s analysis must be conducted in the context

of the trial as a whole. See Hodge v. Hurley, 426 F.3d 368, 384

(6th Cir. 2005) (“We emphasize that the each instance of

prosecutorial misconduct — and each failure to object

thereto - must not be considered in isolation, but in the context

of the prosecution’s entire opening statement and closing

argument . . . .”).

Opening Statement. Curruthers’ counsel’s decision not to

object to the prosecutor’s statement during opening statement

did not “f[a]ll below an objective standard of reasonableness.”

Strickland, 466 U.S. at 688. Curruthers’ counsel said he decided

not to object “for strategic reasons” because, in his twenty-two

years of federal criminal trial experience, he “did not believe

[the] statement was objectionable because opening statements are

not evidence” and the statement “neither rose to a constitutional

violation nor [was a] statement that would call for a motion for

a mistrial.” (ECF No. 5-1 ¶ 3.)

A failure to object to prosecutorial misconduct can

constitute ineffective assistance of counsel. Hodge, 426 F.3d

at 377 (citations omitted). The failure to object usually does

not constitute deficient performance when the decision is based

on reasonable trial strategy. See Washington v. Hofbauer, 228

F.3d 689, 702 (6th Cir. 2000) (“[C]ounsel’s failure to object to

prosecutorial misconduct constitutes defective performance when

that failure is due to clear inexperience or lack of controlling

law, rather than reasonable trial strategy.”); see also Hodge,

426 F.3d at 385 (“[A]n action is not objectively reasonable

unless it ‘might be considered sound trial strategy.’”) (quoting

Strickland, 466 at 689). However, “the label ‘strategy’ is not

a blanket justification for conduct which otherwise amounts to

ineffective assistance of counsel.” Lovett v. Foltz, 1989 WL

101522, at *4 (6th Cir. 1989). “[E]ven deliberate trial tactics

may constitute ineffective assistance of counsel if they fall

outside the wide range of professionally competent assistance.”

Martin v. Rose, 744 F.2d 1245, 1249 (6th Cir. 1984) (quotation

marks and citation omitted).

In retrospect, the prosecutor’s statement during opening

statement was objectionable. Opening statements that are

supported by the evidence presented at trial (or rely on

reasonable inferences drawn from that evidence) are normally not

objectionable. See United States v. McShan, 757 F. App’x 454,

462 (6th Cir. 2018) (citation omitted). But prosecutors may not

misstate the evidence, United States v. Carter, 236 F.3d 777,

784 (6th Cir. 2001), or argue facts not supported by the

evidence, Abela v. Martin, 380 F.3d 915, 929 (6th Cir. 2004)

(subsequent history omitted).

At trial, the evidence did not support the statement in the

prosecutor’s opening. Officer Boyce, the officer who arrested

Curruthers, testified that the reason his attention was drawn to

Curruthers’ car was that, during his canvasing of an area in

response to a robbery, he noticed a car with a “rear vent window

[] broken out.” (Cr. ECF No. 65 at 58:5-24.) Officer Boyce

thought this was suspicious because it was consistent with what,

in his experience, suggested a stolen car. (See id. at 58:24-

59:15.) Officer Boyce did not testify (and it cannot be

reasonably inferred from his testimony) that the car was “driving

at a slow pace” or that he thought Curruthers was “casing

wherever [sic] store” at the time. (See id.) In retrospect,

the prosecutor’s statement was objectionable because it was not

supported by the evidence.

Counsel’s failure to object to the statement did not fall

“below an objective standard of reasonableness.” Strickland,

466 U.S. at 688. His tactics did not fall “outside the wide

range of professionally competent assistance.” Martin, 744 F.2d

at 1249. Because the statement was prospective, any impropriety

was not “plain enough for a minimally competent counsel to have

objected.” Wilson v. Bell, 368 F. App’x 627, 636 (6th Cir. 2010)

(quoting Hofbauer, 228 F.3d at 698). Officer Boyce might have

testified to the prosecutor’s description of events. It is not

objectively unreasonable to fail to object to “evidence which

the prosecutor [is] reasonably expected to produce.” Frazier v.

Cupp, 394 U.S. 731, 736 (1969); cf. McShan, 757 F. App’x at 463

(“[N]ot every variance between a prosecutor’s description of the

evidence during an opening statement and the actual presentation

of the evidence to the jury constitutes reversible error.”)

(citing Frazier, 394 U.S. at 736). Curruthers’ counsel’s failure

to object to the prosecutor’s comments during opening statement

did not “f[a]ll below an objective standard of reasonableness.”

Strickland, 466 U.S. at 688.

Closing Argument. Curruthers’ counsel’s decision not to

ask for a contemporaneous curative instruction during closing

argument also did not “f[a]ll below an objective standard of

reasonableness.” See id. Curruthers’ counsel’s stated

justification for not seeking a contemporaneous curative

instruction was that he “knew that the Court would ultimately

give an instruction that told the jury not to consider [the

prosecutor’s] statements as evidence” and “that asking for a

curative statement at that time would draw more attention than

necessary” to the statement. (ECF No. 5-1 at ¶ 4.)

“At a minimum, an attorney who believes that opposing

counsel has made improper closing arguments should request a

bench conference at the conclusion of the opposing argument,

where he or she can lodge an appropriate objection out the

hearing of the jury.” Hodge, 426 F.3d at 386 n.25 (citing United

States v. Young, 470 U.S. 1, 13-14 (1985)). Curruthers’ counsel

did that. At sidebar, the Court concluded that, although the

prosecutor’s remark was “misleading” and potentially improper

under Federal Rule of Evidence 404(b), it could be cured by

instructing the jury that Curruthers was on trial only for

possessing the firearms at issue and that any statement made by

counsel was not evidence. (See Cr. ECF No. 66 at 256:19-260:18.)

Curruthers’ counsel’s decision not to request a

contemporaneous curative instruction was not objectively

unreasonable because a “trial court can generally correct

[improper prosecutorial statements] by instructing the jury that

closing arguments are not evidence.” United States v. Crosgrove,

637 F.3d 646, 664 (6th Cir. 2011) (citing United States v.

Emuegbunam, 268 F.3d 377, 406 (6th Cir. 2001)); cf. Donnelly v.

DeChristoforo, 416 U.S. 637, 643-45 (1974) (holding that a

prosecutor’s ambiguously improper remarks during closing

argument did not violate defendant’s right to a fair trial

because the court addressed the remarks and gave a curative

instruction later in the jury instructions). It was not

objectively unreasonable as a trial tactic for Curruthers’

counsel not to request a contemporary curative instruction. See

Schauer v. McKee, 401 F. App’x 97, 101 (6th Cir. 2010) (“Not

drawing attention to a statement may be perfectly sound from a

tactical standpoint.”) (citing United States v. Caver, 470 F.3d

220, 244 (6th Cir. 2006)). Once the Court had decided that its

final jury instruction was sufficient to avoid the jury’s being

misled, a request for a contemporaneous instruction would have

been unavailing. Curruthers’ counsel’s failure to request a

contemporaneous curative instruction during closing argument did

not “f[a]ll below an objective standard of reasonableness.”

Strickland, 466 U.S. at 688.

Direct Appeal. Curruthers’ counsel’s decision not to raise

prosecutorial misconduct on direct appeal did not “f[a]ll below

an objective standard of reasonableness” because such an argument

would have failed. See Mapes v. Coyle, 171 F.3d 408, 427 (6th

Cir. 1999) (”Counsel [cannot] be unconstitutionally ineffective

for failing to raise . . . meritless arguments.”). Curruthers’

counsel justified his failure to raise prosecutorial misconduct

on direct appeal because he did not believe the remarks came

close to the standard for prosecutorial misconduct and that

raising such a claim would be “frivolous” and would “detract[]

from Mr. Curruthers[’] other viable arguments.” (ECF No. 5-1 ¶

5.)

To have prevailed on a claim of prosecutorial misconduct,

Curruthers would have had to show that the prosecutor’s conduct

was “so egregious as to deny [him] a fundamentally fair trial[.]”

Johnson v. United States, 1995 WL 27406, at *2 (6th Cir. 1995)

(citing Donnelly, 416 U.S. at 643-45). This Circuit employs a

two-step approach to determine whether prosecutorial misconduct

violates a defendant’s due process rights. See United States v.

Carroll, 26 F.3d 1380, 1385-87 (6th Cir. 1994). First, the court

decides whether the prosecutor made remarks that were improper.

United States v. Carter, 236 F.3d 777, 783 (6th Cir. 2001)

(citations omitted). Second, if the remarks were improper, the

court considers and weighs four factors: (1) whether the conduct

and remarks of the prosecutor tended to mislead the jury or

prejudice the defendant; (2) whether the conduct or remarks were

isolated or extensive; (3) whether the remarks were deliberately

or accidentally made; and (4) whether the evidence against the

defendant was strong. Macias v. Makowski, 291 F.3d 447, 452

(6th Cir. 2002) (citing Carter, 236 F.3d at 783, and Carroll, 26

F.3d at 1385); cf. Lovett, 1989 WL 101522, at *6 (“In evaluating

charges of prosecutorial misconduct, the court should look at

whether the defense invited the error, the pervasiveness of the

misconduct, its egregiousness and deliberateness, and its weight

when compared to the total body of evidence produced at trial.”)

(citing Darden v. Wainwright, 477 U.S. 168, 181-83 (1986)).

“Inappropriate prosecutorial comments, standing alone, would not

justify a reviewing court to reverse a criminal conviction

obtained in an otherwise fair proceeding.” Young, 470 U.S. at

11.

Even assuming the remarks were improper, the Carroll

factors, considered together, do not weigh in favor of

Curruthers:

a. Misleading and Prejudicial. The first factor weighs in

Curruthers’ favor. As the Court recognized at trial, the

statement at closing was potentially misleading and could

have prejudiced Curruthers because the jury could have

thought that Curruthers was guilty of conduct other than

what he was charged with in the indictment or that he was

about to commit another crime when he was arrested. (See

Cr. ECF No. 66 at 256:19-260:18.)

b. Isolated or Extensive. The second factor weighs against

Curruthers. There were only two isolated comments. The

first was a single representation during opening

statement, and, after the evidence did not support that

representation, the prosecution did not mention Officer

Boyce’s unsupported belief in Curruthers’ “casing

wherever [sic] store.” The second statement was a single

sentence at the beginning of closing argument. After the

Court instructed the prosecutor to tread carefully, the

prosecutor rephrased and did not speculate about future

conduct.

c. Deliberate or Accidental. This factor is neutral. The

first statement appears accidental because it is

reasonable to assume that the Government thought Officer

Boyce’s testimony would be consistent with its opening.

Although at trial the Court did not find that the

prosecutor’s closing argument was intended to mislead the

jury, the second statement was deliberate because the

prosecutor at sidebar said he alluded to his “theory of

the case”: that Curruthers possessed the firearms because

“he was probably about to commit robbery.” (Id. at

255:11-22.)

d. Strength of Evidence. The strength of the evidence

weighs against Curruthers. The evidence that Curruthers

possessed the firearms was strong. On appeal, the Court

affirmed the jury’s determination that the proof

submitted at trial was sufficient to establish guilt

beyond a reasonable doubt. See Curruthers, 511 F. App’x

at 459-60. The statements by the prosecution alluding

to possible future conduct, although potentially

misleading and prejudicial, carried little weight given

the proof in this case. See Darden, 477 U.S. at 182

(“[T]he overwhelming eyewitness and circumstantial

evidence to support a finding of guilt on all charges,

reduced the likelihood that the jury's decision was

influenced by argument.”) (internal citation and

quotation marks omitted).

When weighing these factors, the Court finds that the

prosecutor’s statements did not “so infect the trial with

unfairness as to make the resulting conviction a denial of due

process.” Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S.

at 643). Because Curruthers’ prosecutorial misconduct claim

would have failed on direct appeal, counsel’s failure to raise

it was not objectively unreasonable. See Mapes, 171 F.3d at

427.

This is not a case where counsel was so deficient and

prosecutorial misconduct so pervasive that habeas relief is

warranted. See, e.g., Hodge, 426 F.3d at 376-89 (child rape

defendant was prejudiced by his counsel’s myriad failures to

object to prosecutor’s suggestions that defendant, defendant’s

expert, and defense counsel were lying, prosecutor’s

misrepresentation of examining physician’s testimony, and

prosecutor’s general argument that jury should convict defendant

on the basis of his bad character; thus, defense counsel provided

ineffective assistance, given lack of physical evidence

confirming sexual activity and importance of defendant’s

credibility); Hofbauer, 228 F.3d at 703-09 (counsel was

ineffective for failing to object to the prosecutor’s

introduction of evidence of the defendant’s unseemly character,

including statements about his alleged abusive behavior,

excessive alcohol consumption, and drug abuse); cf. Andrus v.

Texas, No. 18-9674, 2020 WL 3146872, at *5-8 (U.S. June 15, 2020)

(per curium) (defense counsel provided constitutionally

deficient performance by failing to investigate mitigating

evidence and to rebut aggravating evidence). Curruthers is not

entitled to habeas relief based on the prosecutor’s comments or

his counsel’s failure to object to them. See Young, 470 U.S. at

11 (“[A] criminal conviction is not to be lightly overturned on

the basis of a prosecutor’s comments standing alone, for the

statements or conduct must be viewed in context . . . .”).

Curruthers’ § 2255 Motion on this ground is DENIED.

3. Ineffective Assistance of Counsel – Failure to

Request Competency Hearing

Curruthers contends that his counsel was ineffective for

failing to request a competency hearing before trial. (See ECF

No. 1-1 at 7.) Curruthers contends that his counsel was required

to seek a competency hearing because Curruthers had been

diagnosed with “schizoaffective disorder among other things.”

(Id. at 8.) Curruthers’ counsel submits that he never requested

a competency hearing because Curruthers never appeared to be

incompetent and appeared to have a fully rational and factual

understanding of the trial process. (ECF No. 5-1 ¶ 9.)

“Counsel’s failure to request the trial court to order a

hearing or evaluation on the issue of the defendant’s competency

might render counsel’s performance objectively unreasonable,

provided there are sufficient indicia of incompetence to give

objectively reasonable counsel reason to doubt the defendant’s

competency.” United States v. Dubrule, 822 F.3d 866, 881 (6th

Cir. 2016) (internal alterations and quotation marks omitted)

(citing Jermyn v. Horn, 266 F.3d 257, 283 (3d Cir. 2001)). To

be competent to stand trial, a defendant must have a “sufficient

present ability to consult with his lawyer with a reasonable

degree of rational understanding” and must possess “a rational

as well as factual understanding of the proceedings against him.”

Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam).

“There are . . . no fixed or immutable signs which invariably

indicate the need for [] inquiry to determine fitness to proceed;

the question is often a difficult one in which a wide range of

manifestations and subtle nuances are implicated.” Drope v.

Missouri, 420 U.S. 162, 180 (1975). The “emphasis is on capacity

to consult with counsel and comprehend the

proceedings[] . . . .” Pate v. Robinson, 383 U.S. 375, 388

(1966) (Harlan, J., dissenting). Even mental illness does not

mean that a defendant is not competent to stand trial. Dubrule,

822 F.3d at 875–76 (citations omitted).

Before trial, Curruthers was diagnosed with schizoaffective

disorder, alcohol abuse, borderline intellectual functioning,

hypertension, diabetes, hepatitis C, gastroesophageal reflux

disease, and hyperlipidemia; had a Global Assessment of

Functioning (“GAF”) score of 50;4 was prescribed Prolixin and

Cogentin; and “was referred to the Southeast Mental Health Center

on April 21, 2009 . . . in connection with his supervised release

conditions.” (ECF No. 5-1 ¶ 6.) Curruthers’ counsel knew of

those diagnoses and conditions. (Id.; see also Cr. ECF No. 59

at 16:21-20:2.) Awareness of mental illnesses, alone, does not

require counsel to request a competency hearing. See Dubrule,

822 F.3d at 875–76. There must be sufficient indicia of

incompetence to give objectively reasonable counsel reason to

believe that the defendant does not have a rational understanding

of the proceedings against him. See Dusky, 362 U.S. at 402.

4 Mental health professionals use a GAF scoring system to assess how

well an individual functions in his daily life. Doctors consider

social, occupational, educational, and psychological functioning

before assigning a score. The scores range from 0 to 100, with 100

representing superior functioning. A score of 41-50 reflects “serious

symptoms” (e.g., suicidal ideation, severe obsessional rituals,

frequent shoplifting) “OR any serious impairment in social,

occupational, or school functioning (e.g., no friends, unable to keep

a job).” White v. Comm’r of Soc. Sec., 572 F.3d 272, 276 (6th Cir.

2009) (citation omitted); see also American Psychiatric Ass’n,

Diagnostic and Statistical Manual of Mental Disorders 32–34 (4th Ed.

Text Revision 2000).

Curruthers’ counsel submits that Curruthers never exhibited

any irrational behavior; always had appropriate demeanor in

attorney/client meetings and in court; assisted in trial

preparation and at trial; was fully engaged in the criminal trial

process; and appeared competent at trial and during sentencing.

(ECF No. 5-1 ¶¶ 9, 10.) Counsel concluded that Curruthers’

“mental health conditions were fully under control.” (Id. ¶ 10.)

The record supports counsel’s conclusion. Although the

Court did not hold a competency hearing, Curruthers’ mental

health was discussed extensively at sentencing.5 (See Cr. ECF

No. 59 at 16:21-20:2; 23:19-25; 45:24-47:21.) The Court opined

that:

Mr. C[u]rruthers operates at a higher level than borderline

intellectual functioning in my observation. He’s a smarter

man than that. . . . He’s got a lot of savvy, and I think

he has the ability to understand above what borderline

intellectual functioning would suggest. However, I’m not

trying to get behind the diagnosis because I’m not a

professional. So, I’m going to accept the diagnosis except

to say that it does appear to me that he operates at a

higher level as a practical matter. . . . The bottom line

[] here is that Mr. Carruthers knows right from wrong, and

he’s made a lot of bad choices in his life. He’s able to

understand the nature and consequences of his actions.

5 Although the sentencing colloquy does not speak directly to

Curruthers’ capacity before trial, it does support the reasonable

inference that Curruthers was cognizant of the proceedings against

him. See Pate, 383 U.S. at 390 (Harlan, J., dissenting) (“The record

reveals colloquies between [the defendant] and the trial judge which

undoubtedly permitted a reasonable inference that [the defendant] was

quite cognizant of the proceedings and able to assist counsel in his

defense.”).

(Id. at 46:25-47:17.) During sentencing, Curruthers testified

on his own behalf. (Id. at 7:7-11:2; 32:21-36:7.) His testimony

demonstrated his competence and his understanding of the

proceedings against him. (See id.) There were no indicia that

Curruthers did not have a rational understanding of the

proceedings. See Dusky, 362 U.S. at 402. Curruthers’ counsel

was not deficient for failing to request a competency hearing

before trial. Dubrule, 822 F.3d at 881. Curruthers’ § 2255

Motion on this ground is DENIED.

B. Johnson Motion

1. Timeliness

In his Johnson Motion, Curruthers seeks to amend his initial

§ 2255 Motion.6 Curruthers filed the original § 2255 motion on

July 22, 2013. (ECF No. 1.) He filed his Johnson Motion on

August 18, 2015. (ECF No. 8.) Curruthers’ Johnson Motion was

not filed within one-year of the filing of his initial § 2255

Motion. Normally, his claim would be untimely. See Porterfield

v. United States, 2018 WL 1947423, at *2 (W.D. Tenn. Apr. 25,

2018) (citing Berry, 2017 WL 401269, at *10); see also Reese,

6 Curruthers’ Johnson Motion was filed before this Court decided his

initial § 2255 Motion. (ECF No. 8.) Curruthers’ Johnson Motion is

not a successive petition under 28 U.S.C. § 2255(h) because this Court

had yet to rule on his initial § 2255 Motion. Clark, 764 F.3d at 658

(“A motion to amend is not a second or successive § 2255 motion when

it is filed before the adjudication of the initial § 2255 motion is

complete.”).

2016 WL 1050719, at *2. However, Curruthers’ Johnson Motion is

“save[d]” by § 2255(f)(3). See Oleson v. United States, 27 F.

App’x 566, 570-71 (6th Cir. 2001) (implying that a motion to

amend a § 2255 motion is timely if it is filed within a year of

one of § 2255(f)’s enumerated events).

Under § 2255(f)(3), a petitioner may bring a § 2255 motion

within one year of “the date on which the right asserted was

initially recognized by the Supreme Court, if that right has

been newly recognized by the Supreme Court and made retroactively

applicable to cases on collateral review.” Johnson was decided

recognizing a new right on June 26, 2015. 135 S. Ct. 2551. In

Welch v. United States, Johnson was made retroactively applicable

to cases on collateral review. 136 S. Ct. 1257, 1265 (2016).

Curruthers filed his Johnson Motion on August 18, 2015. (ECF

No. 8.) Curruthers’ Johnson Motion is timely.

2. Analysis

In his Johnson Motion, Curruthers argues that he should be

resentenced because, after Johnson, he no longer has at least

three ACCA-predicate convictions and is no longer an armed career

criminal.7 (ECF No. 8 at 1-3.)

7 In his Johnson Motion, Curruthers contests only his prior conviction

for solicitation to commit robbery. (ECF No. 8 at 1-3.) The Court

sua sponte analyzes his classification as a whole.

At sentencing, Curruthers had six prior convictions that

qualified as violent felonies under the ACCA:

(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.

(PSR ¶¶ 31, 39, 40, 41, 46.) The Government concedes that, post-

Johnson, Curruthers’ burglary in the third-degree conviction and

his solicitation to commit robbery conviction no longer qualify

as violent felonies. (ECF No. 32 at 9-10); see Walker v. United

States, 769 F. App’x 195, 198 (6th Cir. 2019) (subsequent history

omitted); United States v. Benton, 639 F.3d 723, 730-31 (6th

Cir. 2011) (noting that solicitation crimes in Tennessee do not

typically qualify as violent felonies under the ACCA). The

Government contends that Curruthers is not entitled to

resentencing because he still has three predicate offenses that

qualify as violent felonies. (ECF No. 32 at 4-9.)

a. 1993 Tennessee Conviction for Burglary of a Building

On April 28, 1993, Curruthers was convicted under Tennessee

Code Annotated § 39-14-402 for burglary of a building. (ECF No.

32-3.) The relevant judgment shows that Curruthers’ burglary of

a building conviction was a Class D felony. (Id.) Convictions

for Class D felonies under § 39–14–402 necessarily qualify as

violent felonies under the enumerated-offenses clause of the

ACCA because the language of the relevant subsections falls

within the generic definition of burglary. See Priddy, 808 F.3d

at 685 (“[I]f the conviction records for a Tennessee burglary

offense indicate that the defendant was convicted of a Class D

felony, then that offense was necessarily a violation of Tenn.

Code Ann. § 39–14–402(a)(1), (a)(2), or (a)(3) and, as a result,

was a generic burglary . . . .”), abrogated by United States v.

Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc), which in turn was

rev’d by 139 S. Ct. 399 (2018)); Brumbach v. United States, 929

F.3d 791, 794-95 (6th Cir. 2019) (confirming that Priddy remains

binding precedent after the Supreme Court’s decision in Stitt),

cert. denied, 2020 WL 411809 (U.S. Jan. 27, 2020). Curruthers’

1993 Tennessee conviction for burglary of a building qualifies

as a violent felony under the ACCA.

b. 2004 Federal Conviction for Aiding and Abetting8 Armed

Bank Robbery

On June 23, 2004, a jury convicted Curruthers of violating

18 U.S.C. § 2113(a) and (d). (N.D. Miss. No. 2:01-cr-00049-001,

8 Aiding and abetting qualifies as a violent felony if the underlying

substantive crime qualifies as a violent felony. See Walker, 769 F.

App’x at 200 (“If a crime is a violent felony for purposes of the

ACCA’s force clause, a conviction for this crime remains a violent

felony whether one is convicted of this crime as a principal or an

ECF Nos. 94-96, 100.) Post-Johnson, this Circuit has held that

§ 2113(a) is divisible. United States v. McBride, 826 F.3d 293,

295–96 (6th Cir. 2016). McBride held that a violation of

§ 2113(a) constitutes a crime of violence under the use-of-force

clause of the U.S.S.G. when it involves the use of force and

violence or intimidation. Id. Curruthers’ conviction for

violation of § 2113(a) involved force and violence or

intimidation because he was convicted of armed bank robbery under

18 U.S.C. § 2113(d), which requires the elements of “assault[ing]

any person, or put[ting] in jeopardy the life of any person[,]

by the use of a dangerous weapon or device, . . . .” 18 U.S.C.

§ 2113(d); (see N.D. Miss. No. 2:01-cr-00049-001, ECF No. 75.)

Curruthers’ conviction for aiding and abetting armed bank robbery

under 18 U.S.C. § 2113(d) constitutes a crime of violence, see

McBride, 826 F.3d at 296, and qualifies as a violent felony under

the ACCA’s use-of-force clause.9 Shelton v. Barnhart, 2019 WL

508069, at *4 (E.D. Ky. Feb. 8, 2019), aff’d, 2019 WL 4165112

(6th Cir. Aug. 16, 2019); In re Hines, 824 F.3d 1334, 1337 (11th

accessory.”) (subsequent history omitted) (citing United States v.

Richardson, 906 F.3d 417, 426 (6th Cir. 2018)).

9 The “crime of violence” analysis under the career-offender guidelines

is the same as the “violent felony” analysis under the ACCA. Denson,

728 F.3d at 607 (6th Cir. 2013); cf. United States v. Fish, 758 F.3d

1, 5 (1st Cir. 2014) (“[T]he United States Sentencing Guidelines define

the term ‘crime of violence’ using language that is almost, but not

quite, the same as the language that ACCA uses to define the term

‘violent felony.’”).

Cir. 2016) (noting that a conviction for armed bank robbery under

18 U.S.C. § 2113(a) and (d) constitutes a violent felony under

the ACCA’s use-of-force clause); cf. United States v. Armour,

840 F.3d 904, 907-09 (7th Cir. 2016), as amended (June 26, 2017)

(holding that the federal crime of attempted armed bank robbery

qualifies as a crime of violence under the use-of-force clause).

c. 1991 Tennessee Convictions for Aggravated Assault

In 1991, Curruthers was convicted under Tennessee Code

Annotated § 39–13–102 on two counts of aggravated assault. (ECF

No. 32-1 at 5-6.) The 1991 version of § 39–13–102 is divisible.10

See Tenn. Code Ann. § 39–13–102 (1991). The Court must refer to

10 The 1991 version of § 39–13–102 provided:

(a) A person commits aggravated assault who:

(1) Commits an assault as defined in § 39-13-101, and:

(A) Causes serious bodily injury to another; or

(B) Uses or displays a deadly weapon; or

(2) Being the parent or custodian of a child or the

custodian of an adult, intentionally or knowingly fails or

refuses to protect such child or adult from an aggravated

assault described in subsection (a); or

(3) After having been enjoined or restrained by an order,

diversion or probation agreement of a court of competent

jurisdiction from in any way causing or attempting to cause

bodily injury or in any way committing or attempting to

commit an assault against an individual or individuals,

attempts to cause or causes bodily injury or commits or

attempts to commit an assault against such individual or

individuals.

(b) Aggravated assault is a Class C felony. The court shall

consider as an enhancement factor at the time of sentencing that

the victim of the aggravated assault was a law enforcement

officer, firefighter, probation officer or parole officer

performing an official duty.

the Shepard documents to determine which of § 39–13–102’s

alternative elements formed the basis of Curruthers’

convictions. See Descamps, 570 U.S. at 260-62.

Although the relevant indictments charged Curruthers with

attempted first-degree murder, the relevant judgments show that

Curruthers pled guilty to, and was convicted of, two counts of

aggravated assault. (See ECF No. 32-1 at 1-6.) When a defendant

pleads guilty to crimes not charged in the indictments, courts

must consider other Shepard documents to determine the elements

the defendant “necessarily admitted” when pleading guilty. See

Dillard v. United States, 768 F. App’x 480, 488 (6th Cir. 2019);

McMurray, 653 F.3d at 377; see also Harper v. United States, 780

F. App’x 236, 242-45 (6th Cir. 2019) (Moore, J., concurring).

In the transcript of his plea colloquy, the prosecutor recited

the factual basis for Curruthers’ guilty plea:

The facts of the case are as follows: . . . [Curruthers]

was in the Shelby County jail pending either an indictment

or during the course of the indictment . . . . On October

17th, he and – or sometime in that vicinity of time, maybe

a day or so before, he and the victims in this case, the

two people who were also in jail with pending cases, one

named Keith Mack, also known as Charles Williams, the other

known as Harry Clay Jones got into an altercation.

[Curruthers] had procured shanks, commonly known as shanks

[sic] which were made in this particular case of broken off

pieces of a toilet apparatus in a cell somewhere thereabout,

eight inches long and about three-quarters of an inch in

diameter. He then assaulted, along with some other people,

he wasn’t by himself but those other people were unable to

identify clearly, he then assaulted principally [Jones]

giving him some multiple 20, 30 stab wounds to his body,

starting at his neck and going on down.

[Jones] was in intensive care and as a result, not a direct

result but an indirect result of those attacks, lost both

his legs below the knees and the fingers on one of his

hands.

[Mack] who is the nephew of [Jones] who is a very large

person was also attacked and he claimed in the process of

trying to attack [Jones] and received multiple stab wounds

to the back of his head requiring stitches.

[Jones] -- well of course the report was made to the police.

An investigation proceeded. [Mack] -- excuse me,

[Curruthers] made several statements to several jailers.

Basically his position was that these two guys jumped him

several different times. They were trying to take over the

pod. He felt threatened and he decided to take matters

into his own hands. He bided his time. He talked one of

his co-pod people to let [hi]m have that person’s shanks

which were hidden, and then he proceeded during shift change

about five or three o’clock, four o’clock during shift

change when the guards were fairly thin, he proceeded to

attack those people he perceived to be a threat to him. He

did a good job on [Jones]. [Mack] he didn’t do quite as

good a job on. Both of them left the pod and went to the

hospital.

And his statement basically was I tried to kill him and I’d

try again if they came back into the pod. I believe those

are the main facts of the case.

(ECF No. 32-2 at 4:3-5:13.) Curruthers disagreed with the

characterization of some of these facts. Specifically, he said

he acted in self-defense. (See id. at 6:14-8:10.) Curruthers

did not object to the foundational facts supporting his guilty

pleas.

The facts include no reference to a parent-child

relationship, which is a necessary element of § 39-13-102(a)(2),

or a restraining order, which is a necessary element of § 39-13-

102(a)(3). (See id. at 4:3-6:13.) The Court is satisfied that

Curruthers pled guilty to § 39–13–102(a)(1)(A) (causes serious

bodily injury to another) or § 39–13–102(a)(1)(B) (uses or

displays a deadly weapon). See West, 2020 WL 260430, at *4

(“[A]dmission to facts that satisfy an element of one aggravated

assault variant, and [a] lack of admission to any elements of

the others, supports an inference that [one] ple[d] guilty to

that variant.”). Having confirmed that Curruthers was convicted

under § 39–13–102(a)(1)(A) or § 39–13–102(a)(1)(B), the question

is whether aggravated assault under either, both, or neither, as

a category, constitutes a violent felony. See Covington, 738

F.3d at 763. Both do.

This Circuit has held that a violation of identical language

in a succeeding version of § 39-13-102(a)(1)(A) qualifies as a

violent felony under the ACCA’s use-of-force clause. See

Campbell v. United States, 2017 WL 4046379, at *2 (6th Cir. Mar.

22, 2017). This Circuit has also held that a violation of

identical language in a succeeding version of § 39-13-

102(a)(1)(B) qualifies as a violent felony under the ACCA’s use-

of-force clause. See Braden, 817 F.3d at 933. Curruthers’ 1991

aggravated assault convictions qualify as violent felonies under

the ACCA.11

Curruthers has at least three convictions that qualify as

violent felonies under the ACCA: his 1991 Tennessee convictions

for aggravated assault; his 1993 Tennessee conviction for

burglary of a building; and his 2004 federal conviction for

aiding and abetting armed bank robbery.12 Because Curruthers is

properly classified as an armed career criminal, amending his

§ 2255 Motion to allow a Johnson claim would be futile.

Parchman, 896 F.3d at 737-38. Curruthers’ Johnson Motion is

DENIED.

C. Rehaif Motion

Curruthers seeks to amend his original § 2255 Motion to add

a claim under Rehaif v. United States, 139 S. Ct. 2191 (2019).

(ECF No. 24.) Eighteen U.S.C. § 922(g) makes it unlawful for

certain persons to possess firearms. Eighteen U.S.C. § 924(a)(2)

requires that a defendant “knowingly violate[ ]” § 922(g). On

June 21, 2019, the Supreme Court decided Rehaif. 139 S. Ct.

11 Because violations of § 39–13–102(a)(1)(A) and § 39–13–102(a)(1)(B)

are categorically violent felonies, it is unnecessary to determine the

precise subsection to which Curruthers pled.

12 Because Curruthers has at least three qualifying convictions under

the ACCA, the Court need not consider the Hill criteria to determine

whether Curruthers’ 1991 convictions for aggravated assault were for

crimes committed “on occasions different from one another.” See 18

U.S.C. § 924(e)(1); United States v. Hill, 440 F.3d 292, 297 (6th Cir.

2006).

2191. Rehaif held that, in a prosecution under § 922(g), the

Government must prove both that a defendant knew he possessed a

firearm (possession-knowledge element) and that he knew he

belonged to the relevant category of persons barred from

possessing a firearm (status-knowledge element). See 139 S. Ct.

at 2195-2200. Curruthers argues that his indictment was

deficient because it did not include the status-knowledge element

and that his conviction is defective because the jury was never

instructed on that element and the Government never proved it.

(See ECF No. 24 at 2-4.)

Curruthers’ Rehaif Motion seeks to amend his initial § 2255

Motion. Assuming without deciding that Curruthers’ Rehaif claim

is not time-barred and not procedurally defaulted, it fails on

the merits.

The existence of prior felony convictions can contribute to

the satisfaction of § 922(g)(1)’s status-knowledge element. See

Rehaif, 139 S. Ct. at 2209 (Alito, J., dissenting) (noting that

“[j]uries will rarely doubt that a defendant convicted of a

felony has forgotten th[e] experience” of imprisonment and other

sentencing consequences); United States v. Ward, 957 F.3d 691,

695 (6th Cir. 2020); United States v. Reed, No. 17-12699, 2019

WL 5538742, at *3 (11th Cir. Oct. 28, 2019) (“When [the

defendant] possessed the firearm, he had been convicted of eight

felony convictions . . . . [T]he jury could have

inferred . . . that [the defendant] knew he was not supposed to

have a gun.”) (emphasis in original); United States v. Benamor,

No. 17-50308, 2019 WL 4198358, at *5 (9th Cir. Sept. 5, 2019)

(“[T]he prior convictions for being a felon in possession of a

firearm and being a felon in possession of ammunition proved

beyond a reasonable doubt that Defendant had the knowledge

required by Rehaif....”); United States v. Williams, 776 F. App’x

387, 388 (8th Cir. 2019) (per curium) (unpublished) (holding

that defendant’s prior guilty plea and imprisonment for murder

were evidence that defendant had knowledge of his felon status

under § 924(g)(1) for purposes of satisfying Rehaif); United

States v. Denson, 774 F. App’x 184, 185 (5th Cir. 2019), reh’g

denied (Aug. 8, 2019) (unpublished) (citing the presentence

investigative report where defendant admitted that he had

“previously been convicted of felony offenses” to hold that

defendant had knowledge of his felon status under Rehaif); United

States v. Hollingshed, No. 17-2951, 2019 WL 4864969, at *3 (8th

Cir. Oct. 3, 2019) (holding that defendant’s prior conviction

and imprisonment “indicate[d] that [the defendant] knew he had

been convicted” of a felony); United States v. Spurlin, No. 5:15-

cr-1/MW/MJF, 2019 WL 4722467, at *6 n.5 (N.D. Fla. Aug. 16, 2019)

(“[E]ven if [defendant] had claimed ignorance of his status as

a convicted felon, his lengthy criminal history and extensive

experience with the criminal justice system, the fact that

[defendant] was an experienced drug dealer, and the fact the he

was on federal supervised release at the time he committed the

offenses at issue, would make any claim that [defendant] did not

know he was a convicted felon incredible.”); Shrader v. United

States, No. 1:09-cr-00270, 2019 WL 4040573, at *4 n.2 (S.D.W.

Va. Aug. 27, 2019) (finding that defendant’s prior convictions

and substantial prison sentence would bar him from relief even

if Rehaif were made retroactive on collateral review).

A defendant’s stipulation that he was a convicted felon as

of the date of the charged conduct contributes to the

satisfaction of § 922(g)(1)’s status-knowledge element. Ward,

957 F.3d at 695 (citing United States v. Conley, 802 F. App’x

919, 923 (6th Cir. 2020)); Benamor, 2019 WL 4198358, at *5

(citing Christian Legal Soc’y Chapter of Univ. of Cal. v.

Martinez, 561 U.S. 661, 677–78 (2010)); see Reed, 2019 WL

5538742, at *3 (“[T]he jury could have inferred that [the

defendant] knew he was a felon from his stipulation....”); United

States v. Jackson, No. 17-2727, 2019 WL 3916595, at *2 (7th Cir.

Aug. 19, 2019), reh’g denied (Sept. 9, 2019) (holding post-Rehaif

that a stipulation to being a felon was sufficient to satisfy

the status requirement of § 922(g)(1)); Denson, 774 F. App’x at

185 (holding Rehaif’s knowledge requirement met and noting that

the defendant admitted in a factual résumé stipulation to having

previously been convicted of a “felony offense”); United States

v. Anderson, No. 210CR00113LSCJHE, 2019 WL 3806104, at *2 (N.D.

Ala. July 26, 2019), report and recommendation adopted, No.

210CR00113LSCJHE, 2019 WL 3805998 (N.D. Ala. Aug. 13, 2019)

(finding that defendant’s stipulation to prior felony

convictions undermined his potential Rehaif argument); Boose v.

Marske, No. 17-CV-303-JDP, 2019 WL 4393077, at *3 (W.D. Wis.

Sept. 13, 2019) (finding that defendant’s own stipulation and

admission on direct examination that he had previously been

convicted of several felonies “provide[d] more than enough

evidence to support a reasonable jury verdict that [defendant]

knew that he was a felon”); Hughey v. United States, No.

1:16CV184, 2019 WL 4277401, at *1 (E.D. Tex. Sept. 10, 2019)

(finding that defendant’s stipulation to being a felon foreclosed

his Rehaif argument “on the merits”); United States v. Gordon,

No. CR 17-20067, 2019 WL 3413045, at *3 n.1 (E.D. Mich. July 29,

2019) (same) (“Defendant pleaded guilty under § 922(g)(1) to

being a felon in possession of a firearm and admitted his

relevant status.”); see also United States v. Harrison, 204 F.3d

236, 242 (D.C. Cir. 2000) (holding that defendant’s stipulation

eliminated the government’s burden to “produce any evidence

regarding that stipulation”); United States v. Hardin, 139 F.3d

813, 817 (11th Cir. 1998) (same); United States v. Muse, 83 F.3d

672, 678–79 (4th Cir. 1996) (similar); United States v. Branch,

46 F.3d 440, 442 (5th Cir. 1995) (same). At a minimum,

stipulating to the fact that before the defendant was alleged to

have possessed a firearm the defendant had been convicted of a

felony allows the logical inference that the defendant had

knowledge of the defendant’s status when the crime was committed.

See Ward, 957 F.3d at 696 (“[Defendant] made an [Old Chief v.

United States, 519 U.S. 172 (1997)] stipulation at trial,

pursuant to which he acknowledged that he ‘was a convicted felon

on and prior to the date of the charged conduct’ . . . . The

jury could have inferred from [that stipulation] that [defendant]

also knew that he was a felon.”).

Curruthers satisfies the status-knowledge element of

§ 922(g). He had been convicted of being a felon in possession

of a firearm,13 (see N.D. Miss. No. 2:01-cr-00049-001, ECF No.

108; see also PSR ¶ 46), and had been convicted of multiple other

felonies, (see PSR ¶¶ 30-46). He stipulated to the fact that,

before he was alleged to have knowingly possessed the firearms,

he had been convicted of a felony. (Cr. Tr. Ex. No. 12; see Cr.

ECF No. 65 at 19:4-26:18.) The jury was instructed to that

effect. (See Cr. ECF No. 66 at 293:2-293:18.) That is sufficient

to satisfy Rehaif. See Conley, 802 F. App’x at 924 (“At a

minimum, the prior conviction[] for being a felon in possession

13 Curruthers was convicted of being a felon in possession of a firearm

in the case in which he was convicted of aiding and abetting armed

bank robbery. (See N.D. Miss. No. 2:01-cr-00049-001, ECF No. 108.)

of a firearm . . . proved beyond a reasonable doubt that

[defendant] had the knowledge required by Rehaif . . . .”)

(quoting Benamor, 937 F.3d at 1189); United States v. Robinson,

No. 2:17-cr-20046, 2019 WL 7985173, at *6-7 (W.D. Tenn. Nov. 13,

2019) (collecting cases).

Because a jury would have found that Curruthers had the

knowledge required by Rehaif, allowing Curruthers to amend his

§ 2255 Motion to allow a Rehaif claim would be futile. Parchman,

896 F.3d at 737-38. Curruthers’ Rehaif Motion is DENIED.

D. Motion to Appoint Counsel

Because Curruthers’ is not entitled to relief, his motion

to appoint counsel is DENIED AS MOOT.

IV. Appeal

Twenty-eight U.S.C. § 2253 requires the district court to

evaluate the appealability of its final order in a § 2255

proceeding and to issue a certificate of appealability (“COA”)

“only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see

also Fed. R. App. P. 22(b). No § 2255 movant may appeal without

this certificate. The COA must indicate the specific issue(s)

that satisfy the required showing. 28 U.S.C. § 2253(c)(3). A

“substantial showing” is made when the movant demonstrates “that

reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different

manner or that the issues presented were ‘adequate to deserve

encouragement to proceed further.’” Miller-El v. Cockrell, 537

U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473,

484 (2000)); see also Henley v. Bell, 308 F. App’x 989, 990 (6th

Cir. 2009) (per curiam) (same). Courts should not issue a COA

as a matter of course. Miller-El, 537 U.S. at 337 (“Our holding

should not be misconstrued as directing that a COA always must

issue.”).

Reasonable jurists could not debate whether Curruthers’

petition should have been resolved in a different manner. Id.

at 336. Because the issues raised in his motions do not merit

further review, the Court DENIES a certificate of appealability.

This Circuit has held that the Prison Litigation Reform Act

of 1995, 28 U.S.C. §§ 1915(a)-(b), does not apply to appeals

brought under § 2255. Kincade v. Sparkman, 117 F.3d 949, 951

(6th Cir. 1997). Rather, to appeal in forma pauperis in a § 2255

case, and thereby avoid the appellate filing fee required by 28

U.S.C. §§ 1913 and 1917, the prisoner must obtain pauper status

pursuant to Federal Rule of Appellate Procedure 24(a). Id. at

952. Rule 24(a) provides that a party seeking pauper status on

appeal must first file a motion in the district court, along

with a supporting affidavit. Fed. R. App. P. 24(a)(1). Rule

24(a) also provides, however, that if the district court

certifies that an appeal would not be taken in good faith, or

otherwise denies leave to appeal in forma pauperis, the prisoner

must file his motion to proceed in forma pauperis in the

appellate court. See Fed. R. App. P. 24(a) (4)-(5).

In this case, for the same reasons the Court denies a

certificate of appealability, the Court determines that any

appeal would not be taken in good faith. It is therefore

CERTIFIED, pursuant to Federal Rule of Appellate Procedure 24(a),

that any appeal in this matter would not be taken in good faith.

Leave to appeal in forma pauperis is DENIED.

IV. Conclusion

For the foregoing reasons, Curruthers’ motions are DENIED.

So ordered this 10th day of July, 2020.

/s/ Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE