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Tallie v. United States

United States District Court, M.D. Alabama, Eastern Division

June 12, 2018

ANTHONY DARELL TALLIE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE

         Anthony Darell Tallie (“Tallie”) is before the court on a pro se motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Civ. Doc. # 1.[1]

         I. BACKGROUND AND PROCEDURAL HISTORY

         On March 15, 2012, Tallie pleaded guilty under a plea agreement to aiding and abetting an attempted motor vehicle theft, in violation of 18 U.S.C. §§ 2119(1) & (2) & 2, and aiding and abetting the brandishing of a firearm to further a crime of violence (carjacking), in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) & 2. Civ. Doc. # 6-3 at 1-21. The plea agreement contained an appeal/post-conviction waiver, with exceptions for claims of ineffective assistance of counsel and prosecutorial misconduct. Civ. Doc. # 6-2 at 9- 10. Following a sentencing hearing on August 21, 2012, the district court sentenced Tallie to 78 months in prison, comprised of consecutive terms of 37 months for aiding and abetting an attempted motor vehicle theft and 41 months for aiding and abetting the brandishing of a firearm in a carjacking. Civ. Doc. # 6-4. The district court entered the judgment on August 24, 2012. Civ. Doc. # 6-5. Tallie did not appeal his convictions or sentence.

         Over three years later, on November 3, 2015, Tallie filed a pro se motion he titled as a “Motion of Reconsideration, ” in which he asked the district court to grant him leniency and consider his early release based on his rehabilitation in prison, his family's need for his support, and his cooperation with the Government. Civ. Doc. # 6-8 at 2-3. The Government filed a response opposing the motion but indicating it would consider whether Tallie might have relief through a motion under Rule 35(b) of the Federal Rules of Criminal Procedure.[2] Civ. Doc. # 6-6. On December 14, 2015, the district court entered an order denying Tallie's Motion of Reconsideration “without prejudice to the Government to file an appropriate motion or otherwise notify the court that relief is warranted.” Crim. Doc. # 516.

         On December 28, 2015, Tallie filed a pro se notice of appeal from the district court's denial of his Motion of Reconsideration. Crim. Doc. # 517. The appeal was docketed in the Eleventh Circuit and assigned USCA No. 15-15744-E. See Crim. Doc. # 520. The appellate court appointed attorney Tilden Haywood, who had represented Tallie in his guilty plea proceedings and sentencing, to represent Tallie in his appeal from the denial of his pro se Motion of Reconsideration. Crim. Doc. # 521.

         On March 23, 2016, while Tallie's appeal from the denial of his pro se Motion of Reconsideration was pending in the Eleventh Circuit, the Government filed a Motion for Reduction in Sentence under Rule 35(b) of the Federal Rules of Criminal Procedure in which it requested that Tallie's sentence be reduced by seven months based on additional assistance that Tallie had provided to the Government. Civ. Doc. # 6-8 at 4-7. Tallie, through Haywood, responded to the Government's Rule 35(b) motion by asking the district court to grant him a more substantial reduction-although he did not request a specific number of months. Civ. Doc. # 6-8 at 8-11. On April 12, 2016, the district court granted the Government's Rule 35(b) motion and ordered Tallie's sentence reduced by seven months. Crim. Doc. # 535.

         On May 11, 2016, Haywood filed a “no merit” Anders brief[3] in Tallie's appeal from the district court's denial of his pro se Motion of Reconsideration. See Civ. Doc. # 6-7. Haywood identified one potential issue for the Eleventh Circuit's consideration: whether the district court should have construed Tallie's pro se Motion of Reconsideration as a motion to compel the district court to invoke its authority to reduce his sentence absent the filing of a Rule 35(b) motion by the Government. Id. Pursuant to Anders, Haywood also asked to withdraw from further representation of Tallie. Id. On December 5, 2016, the Eleventh Circuit issued an unpublished opinion finding no arguable issues of merit in Tallie's appeal, allowing Haywood to withdraw as Tallie's counsel, and affirming the district court's judgment denying Tallie's pro se Motion of Reconsideration. Crim. Doc. # 539. The Eleventh Circuit's opinion referred to Tallie's pro se Motion of Reconsideration as a “construed motion for a sentence reduction under Fed.R.Crim.P. 35(b).” Id.

         On May 26, 2016, Tallie, acting pro se, filed the instant § 2255 motion presenting cursory allegations that his counsel, Haywood, “wouldn't work for me” and was “always in court when my wife called him and when we did get him he lied again/put things off.” Civ. Doc. # 1 at 4. Tallie further alleged that Haywood “couldn't focus on my appeal . . . so he withdrew from the case.” Id. at 6. It is not clear from Tallie's vague allegations whether he asserts that Haywood “wouldn't work” for him (and was therefore ineffective) in his guilty plea proceedings and sentencing or whether he asserts that Haywood “wouldn't work” for him in his appeal from the denial of his pro se Motion of Reconsideration.[4]

         On the same date that he filed his § 2255 motion, Tallie also filed a motion styled as a “Motion to Correct Sentencing Clerical Error/Amended Judgment, ” in which he presented a claim that four criminal history points were improperly attributed to him in his Presentence Investigation Report (“PSI”), causing his criminal history category to be overstated for purposes of sentencing. Civ. Doc. # 3. This court construed the motion as an amendment to Tallie's § 2255 motion. See Civ. Docs. # 4 & 9.

         After the Government filed a response to Tallie's § 2255 motion in which it argued, among other things, that the motion was time-barred under AEDPA's one-year limitation period, this court directed Tallie to show cause why his § 2255 motion should not be dismissed on grounds of untimeliness. Civ. Docs. # 6 & 10. On December 12, 2016, Tallie filed a response that included a new claim asserting that the district court's application of a four-level enhancement under U.S.S.G. § 2B3.1(b)(3)(B), for causing serious bodily injury to the carjacking victim, violated the holding in Johnson v. United States, 135 S.Ct. 2251 (2015). Civ. Doc. # 11. The undersigned considers Tallie's § 2255 motion to be before the court on Tallie's claims of (1) ineffective assistance of counsel, (2) error in the calculation of his criminal history category, and (3) a violation of Johnson. For the reasons that follow, it is recommended that Tallie's § 2255 motion be denied without an evidentiary hearing and this case be dismissed with prejudice.

         II. DISCUSSION

         In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which established a one-year limitation period for filing a motion under 28 U.S.C. § 2255. In pertinent part, AEDPA amended § 2255 to provide:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run ...

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