United States District Court, S.D. Indiana, Indianapolis Division
MELVIN D. SPELLS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER DISMISSING MOTION TO VACATE, SET ASIDE, OR
CORRECT SENTENCE AND DENYING A CERTIFICATE OF
EVANS BARKER, JUDGE United States District Court Southern
District of Indiana
matter is before the Court on a Motion to Vacate, Set Aside
or Correct a Sentence pursuant to 28 U.S.C. § 2255 filed
by Petitioner Melvin D. Spells. For the reasons explained in
this Order, the motion is dismissed with
prejudice. In addition, the Court finds that a certificate of
appealability should not issue.
Spells' § 2255 motion is subject to preliminary
review to determine whether “it plainly appears from
the motion, any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to
relief.” Rule 4 of Rules Governing Section 2255
Proceedings in the United States District Courts.
Because the Court finds that Mr. Spells is not entitled to
relief, the Court must dismiss the motion. Id.
September 26, 2006, Mr. Spells was convicted by a jury of
robbery affecting interstate commerce in violation of 18
U.S.C. § 1951(a), brandishing a firearm during and in
relation to a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii), and being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1).
United States v. Spells, No. 1:06-cr-00075-SEB-DKL-1
(“Crim. Dkt.”), Dkt. 1. On January 22, 2007, he
was sentenced under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), to a term of
324 months to be followed by a 5-year term of supervised
release. The three predicate violent felonies giving rise to
Mr. Spells' status under the Armed Career Criminal Act
were resisting law enforcement in Marion County, Indiana and
two counts of robbery in Marion County, Indiana. See
Spells v. United States, No. 1:16-cv-00610-SEB-MJD
(“§ 2255 Dkt.”), Dkt. 23.
26, 2015, the Supreme Court held the residual clause of the
ACCA was unconstitutional. Johnson v. United States,
135 S.Ct. 2551 (2015). Subsequently, the Supreme Court held
that Johnson announced a new substantive rule of
constitutional that the Supreme Court has categorically made
retroactive to ACCA defendants. Welch v. United
States, 136 S.Ct. 1257 (2016).
March 17, 2016, Mr. Spells filed a § 2255 motion arguing
that he was entitled to relief under Johnson. On
November 21, 2017, Mr. Spells and the Government entered into
a stipulation where the parties agreed that Mr. Spells'
prior resisting law enforcement conviction relied upon the
ACCA residual clause for classification as a violent felony.
Thus, the parties agreed that Mr. Spells was no longer an
armed career criminal in view of Johnson. The
parties stipulated to “a sentence of 150 months on
Count 1, and 120 months on Count 3, concurrent; and 84 months
on Count 2, consecutive; to be followed by a three-year term
of supervised release is sufficient, but not greater than
necessary in this matter.” § 2255 Dkt. 23 at 2.
The Court granted Mr. Spells' § 2255 motion, §
2255 Dkt. 24, and resentenced Mr. Spells on December 5, 2017,
in line with the stipulation. Crim. Dkt. 12.
December 4, 2018, Mr. Spells filed the pending § 2255
Spells seeks relief pursuant to § 2255 arguing that: (1)
Hobbs Act Robbery is not a crime of violence and cannot serve
as a predicate offense for a 924(c) conviction or a career
offender classification; (2) the Court failed to use the
Guidelines Manual in effect on his re-sentencing date such
that his sentence was improperly enhanced by a career
offender designation; and (3) his post-conviction counsel,
Sara Varner, provided ineffective assistance of counsel. Dkt.
the Seventh Circuit has held that Hobbs Act robbery
constitutes a crime of violence under the force clause of
§ 924. United States v. Anglin, 846 F.3d 954,
965 (7th Cir. 2017) (“Hobbs Act robbery is a
‘crime of violence' within the meaning of §
92(c)(3)(A).”), vacated on other grounds,
Anglin v. United States, 138 S.Ct. 126 (2017);
see also United States v. Rivera, 847 F.3d 847, 849
(7th Cir. 2017) (holding that the Supreme Court's
decision in Mathis v. United States, 136 S.Ct. 2243
(2016), does not undermine the holding of Anglin
that Hobbs Act robbery constitutes a crime of violence under
the force clause of § 924(c)(3)).
Mr. Spells was resentenced to the exact sentence he agreed to
in a stipulation with the Government. Thus, it is irrelevant
which Guidelines Manual was used as the Court resentenced Mr.
Spells to the stipulated sentence he asked for. In any event,
the Seventh Circuit has held that a defendant cannot raise a
sentencing guideline miscalculation error in a collateral
attack. Hawkins v. United States, 706 F.3d 820 (7th
Cir. 2013), supplemented on denial of rehearing, 724
F.3d 915 (7th Cir. 2013). This is because a guideline
miscalculation or misapplication does not constitute a
miscarriage of justice. See also United States v.
Coleman, 763 F.3d 706, 708-09 (7th Cir. 2014)
(“[W]e held in Hawkins that the error in
calculating the Guidelines range did not constitute a
miscarriage of justice for § 2255 purposes given the
advisory nature of the Guidelines and the district
court's determination that the sentence was appropriate
and that it did not exceed the statutory maximum.”).
Mr. Spells' claim regarding his post-conviction counsel
is rejected because “[a] section 2255 proceeding is an
independent civil suit for which there is no constitutional
right to appointment of counsel.” Oliver v. United
States, 961 F.2d 1339, 1343 (7th Cir. 1992). It is
well-settled that where there is no constitutional right to
counsel, he cannot “be deprived of the effective
assistance of counsel.” Wainwright v. Torna,
455 U.S. 586, 587-88 (1982).
Mr. Spells is not entitled to relief on any of his claims,
his § 2255 motion must be summarily
dismissed pursuant to Rule 4 of the
Rules Governing ...