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United States v. Reynolds

United States District Court, N.D. Indiana, Hammond Division

August 27, 2018




         This matter is before the Court on the “Motion to Vacate Sentence Pursuant to Title 28 U.S.C. § 2255(f)(3)” [ECF No. 312] and the “Motion for Authorization to File a Second or Successive Under 28 U.S.C. § 2255(h)(2)” [ECF No. 323], which has been construed as a motion to amend the original § 2255 motion. For the reasons set forth below, the Court DISMISSES the motion to vacate, DENIES the motion to amend as futile, and DECLINES to issue a certificate of appealability. The Clerk is DIRECTED to DISMISS the associated civil case [2:15-CV-372].


         On February 16, 2011, the Defendant, Tyrone Reynolds a/k/a “Charles Keys, ” “Zero” (“Reynolds”), was charged by way of a superseding indictment with interstate kidnapping in violation of 18 U.S.C. §§ 1201(a)(1) and 2 (“Count 1”), conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. § 846 (“Count 2”), and the use of a firearm during and in relation to a crime of violence and during and in relation to a narcotics offense in violation of 18 U.S.C. §§ 924(c) and 2 (“Count 3”). [ECF No. 79.] A jury found Reynolds guilty on all three counts on May 28, 2011. [ECF No. 52.] A sentencing hearing was held on January 4, 2012, and the Honorable Rudy Lozano sentenced Reynolds to Life imprisonment on Count 1 and two-hundred and forty (240) months imprisonment on Count 2, to be served concurrently, plus a term of seven (7) years on Count 3 to run consecutively to Counts 1 and 2. [ECF No. 237.]

         Reynolds filed a direct appeal, arguing that the Court erred in its calculation of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) by finding that: (1) he was a “leader or organizer” of the criminal activity pursuant to U.S.S.G. § 3B1.1(a); and (2) he and the other assailants made a “ransom demand” during the crime, which was used for purposes of a sentencing enhancement under U.S.S.G. § 2A4.1(b)(1). In an opinion decided on May 8, 2013, the Court of Appeals for the Seventh Circuit upheld the leadership adjustment but reversed and remanded on the “ransom demand” issue, finding that nothing in the record suggested that the demand was made to a third party as was required to support the enhancement. See United States v. Reynolds, 714 F.3d 1039, 1045-46 (7th Cir. 2013). On July 16, 2013, Judge Lozano resentenced Reynolds to a term of three-hundred and twenty-four (324) months imprisonment on Count 1 and two-hundred and forty (240) months imprisonment on Count 2, to be served concurrently, plus a term of sixty (60) months imprisonment on Count 3, to be served consecutively to Counts 1 and 2. [ECF No. 274.]

         Reynolds filed the instant § 2255 motion on September 24, 2015.[1] [ECF No. 312.] In it, he argues that: (1) the Court's use of the words “ransom demand” in the jury instructions and Guideline calculations violated his due process rights because it resulted in an enhanced sentence; (2) there was insufficient evidence to support his convictions; and (3) the Court lacked jurisdiction over him because it provided the jury with an erroneous instruction regarding the interstate nexus. [ECF No. 312.] The Government filed a response in opposition on January 30, 2016. [ECF No. 320.] On August 1, 2016, the Court of Appeals for the Seventh Circuit directed the clerk to transfer a document entitled “Motion for Authorization to File a Second or Successive Under 28 U.S.C. § 2255(h)(2) Memorandum of Supporting Facts” to the Court to be treated as a motion to amend the original § 2255 motion. [ECF Nos. 322 & 323.] In it, Reynolds contends that his conviction for the use of a firearm during and in relation to a crime of violence and during and in relation to a narcotics offense in violation of 18 U.S.C. § 924(c) is void as unconstitutionally vague. [ECF No. 323.] At the Court's direction, the Government filed a response in opposition to the motion to amend on November 18, 2016. [ECF No. 325.] Reynolds has not filed a reply to either the motion to amend or the original § 2255 motion. Thus, the entire issue is ripe for adjudication.


         In its opinion, the Court of Appeals succinctly set forth the relevant facts of the case as follows:

On an evening in October 2006, Reynolds and seven other men drove from Chicago to Gary, Indiana, to rob Glenford Russell at his home. All nine are natives of Belize. Russell, an admitted marijuana dealer, had previously lived in Chicago but moved to Gary after being robbed twice by other Belizeans. Reynolds had discovered the new location after previously following Russell home.
Reynolds's group ambushed Russell outside his house, demanding that he give them his “money and weed.” Russell led Reynolds inside to a bathroom and turned over $15, 000 he had hidden there on behalf of his employer, a drug lord. Reynolds believed there was more, though, and repeatedly demanded that Russell tell him where he had stashed drugs or “the rest of the money.” When Russell denied having anything else, Reynolds and a cohort beat him and cut him with a knife. Reynolds and two other men then tied up Russell with duct tape and electrical cord. Over the next three hours the assailants continued to interrogate Russell about the whereabouts of more money or drugs and eventually moved him to the basement, where Reynolds and another man beat him further. In the basement Reynolds was overheard telling Russell that he used to work for Russell's employer and was still owed money.
The events took a turn after Russell hatched a plan to get out of his house. Russell testified that the assailants seemed to think he was holding out on them and that he feared he would be killed if he did not satisfy their demands. To create an opportunity for escape, he proposed to Reynolds that he could take the group to a cache of 50 pounds of marijuana being stored at a car-repair garage in Chicago. The proposal was a ploy (Russell knew there was no marijuana at the garage), but Reynolds believed him and decided that the group would travel to Chicago the next morning in three separate vehicles, including a car owned by Russell. The assailants made the trip with Russell tied up in one vehicle, but shortly before they reached the garage Russell convinced the others to untie him and let him drive his own car so that employees at the garage would not become suspicious. As he drove toward the garage (all the while being held at gunpoint), Russell flung open his car door and dove onto the pavement. The car crashed into a parked vehicle, the assailants fled, and Russell escaped.
All eight assailants then regrouped at Reynolds's home, where Reynolds divided up the $15, 000 taken from Russell's house. He gave $650 to Tynon Thompson, who criticized the cut as unfair. Jermaine Gentle received $700 and disparaged his share as “measly.” Another assailant also complained about receiving only $700 and was told by Reynolds to “shut up” because “this was his move and his name that's going to get caught.” The men then went their separate ways but were later arrested after Russell reported the crime to authorities.

Reynolds, 714 F.3d at 1041-42.


         A. Motion to Amend

         As an initial matter, the Court must determine whether to allow Reynolds to amend his original § 2255 motion. Generally, prisoners are given “one full opportunity to seek collateral review. Part of that opportunity-part of every civil case-is an entitlement to add or drop issues while the litigation proceeds.” Vitrano v. United States, 721 F.3d 802, 806 (7th Cir. 2013) (citing Johnson v. United States, 196 F.3d 802, 805 (7th Cir. 1999)). That said, the ability to amend is not unfettered, and courts should only grant leave to amend “when justice so requires.” Id. (quoting Fed.R.Civ.P. 15(a)(2)). A court, in its discretion, may properly deny an amendment when there is “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment . . . .” Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 666 (7th Cir. 2007) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Proposed amendments to § 2255 motions should be viewed in light of the applicable limitations on timeliness and successive petitions. Vitrano, 721 F.3d at 806 (citing Suggs v. United States, 705 F.3d 279, 285 (7th Cir. 2013)); see also Mayle v. Felix, 545 U.S. 644, 650 (2005) (“An amended habeas petition, we hold, does not relate back (and thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.”); Rodriguez v. United States, 286 F.3d 972, 980-81 (7th Cir. 2002) (discussing amendments of § 2255 motions).

         As noted by the Seventh Circuit in its order transferring the motion here, because Reynolds's original § 2255 motion was still pending before the Court at the time he filed the second motion, it is not considered successive. [ECF No. 322.] There is also no evidence of undue delay, bad faith or dilatory motive on the part of Reynolds, a failure to cure previous deficiencies, or undue prejudice to the Government; therefore, the only questions remaining are whether the amendment is timely and whether it is futile. Reynolds's motion to amend seeks to challenge his 18 U.S.C. § 924(c) conviction as unconstitutionally vague in light of Johnson v. United States, 135 S.Ct. 2551 (2015). As will be discussed in more detail below, the motion to amend, which was deposited into the mail on June 24, 2016, [2] was filed within one year of the Johnson case decided on June 26, 2015, so it is considered timely. Id.; see also Riney v. United States, No. 15-3783, 2017 WL 3426473, at *1 (7th Cir. Feb. 10, 2017) (motion to amend that was filed prior to the district court rendering a final judgment on the original § 2255 motion was timely because the new claim independently met the limitations period triggered by Johnson). As to futility, because the Government maintains that the amended argument lacks legal substance, the Court will proceed to consider the merits of the additional claim along with the original claims below.

         B. 28 U.S.C. § 2255

         Relief under 28 U.S.C. § 2255 is reserved for “extraordinary situations.” Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). In order to proceed on a motion pursuant to § 2255, a federal prisoner must show that the district court sentenced him in violation of the Constitution or laws of the United States, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. Id. A § 2255 motion is neither a substitute for nor a recapitulation of a direct appeal. Id.; Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994). As a result:

[T]here are three types of issues that a section 2255 motion cannot raise: (1) issues that were raised on direct appeal, absent a showing of changed circumstances; (2) nonconstitutional issues that could have been but were not raised on direct appeal; and (3) constitutional issues that were not raised on direct appeal, unless the section 2255 petitioner demonstrates cause for the procedural default as well as actual prejudice from the failure to appeal.

Belford, 975 F.2d at 313; see also McCoy v. United States, 815 F.3d 292, 295 (7th Cir. 2016). Additionally, aside from demonstrating “cause” and “prejudice” from the failure to raise constitutional errors on direct appeal, a § 2255 movant may alternatively pursue such errors after demonstrating that the district court's refusal to consider the claims would lead to a fundamental miscarriage of justice. Johnson v. Loftus, 518 F.3d 453, 455-56 (7th Cir. 2008).

         Section 2255 contains a one year statute of limitations which runs from the latest of:

(1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) 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; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f); see also United States v. Woods, 169 F.3d 1077, 1078 (7th Cir. 1999). The timeliness of each claim asserted in a § 2255 motion must be assessed separately. Davis v. United States, 817 F.3d 319, 327-28 (7th Cir. 2016).

         In this case, Reynolds was re-sentenced on July 16, 2013, and the judgment and commitment order was entered on July 18, 2013. He had fourteen days to file a notice of appeal, or until August 1, 2013. Reynolds did not appeal his new sentence; therefore, his conviction became final on August 1, 2013. See Clarke v. United Sates, 703 F.3d 1098, 1100 (7th Cir. 2013) (stating that “the sentence did not become final until the deadline for filing a notice of appeal expired”). The instant § 2255 motion and subsequent motion to amend were not filed until September 24, 2015, and June 24, 2016, [3] respectively, both well beyond one year of the date his conviction became final. Reynolds does not argue that government action prevented him from filing a timely motion, nor does he argue that there are facts supporting his claims that could not have been discovered earlier through the exercise of due diligence. Accordingly, Reynolds's claims may only ...

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