United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
Melvin Nance (“Nance”), who is currently
incarcerated at the Federal Correctional Institution in Yazoo
City, Mississippi, filed a Motion to Vacate, Set Aside, or
Correct his Sentence pursuant to 28 U.S.C. § 2255. (Doc.
1.) Respondent filed a Response, (doc. 3), to which Nance
filed a Reply, (doc. 4). Nance also filed a Motion for Summary
Judgment and a Motion for Evidentiary Hearing. (Docs. 6, 8.)
In addition, Nance filed a Motion to Compel the Magistrate
for Report and Recommendation. (Doc. 11.) For the reasons
which follow, I RECOMMEND the Court
DENY Nance's Section 2255 Motion,
DISMISS as moot his Motion for Summary
Judgment, DIRECT the Clerk of
Court to CLOSE this case and enter the
appropriate judgment of dismissal, and DENY
Nance a Certificate of Appealability and in forma
pauperis status on appeal. For these same reasons, the
Court DENIES Nance's Motion for
Evidentiary Hearing and DISMISSES as moot
his Motion to Compel.
originally was convicted in the Middle District of Florida,
after entry of a guilty plea, of being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1). He
was sentenced to 151 months' imprisonment. J., United
States v. Nance, 3:08-cr-00075-MMH-JRK (M.D. Fla. Dec.
2, 2009), ECF No. 91. On January 28, 2014, Nance was housed
at the Federal Prison Camp in Jesup, Georgia. (Doc. 3, p. 1.)
Senior Correctional Officer Kerry Brown received information
on this same date that Nance was in possession of contraband.
Officer Brown went to Nance's cubicle, searched Nance and
his cellmate, and instructed Nance to leave the area so that
Officer Brown could search the cubicle. However, Nance
remained at the entrance to his cubicle while Officer Brown
searched it. Nance then rushed past Officer Brown and entered
the cubicle. Officer Brown and Nance were involved in a
struggle of some sort until Officer Brown became fatigued and
Nance was able to free himself. Nance then left the Prison
next day, United States Magistrate Judge James E. Graham
issued a warrant for Nance's arrest based on a Criminal
Complaint filed by the United States Marshals Service
charging Nance with fleeing a Bureau of Prisons' facility
“without authorized permission.” Compl.,
United States v. Nance, 2:14-cr-6 (S.D. Ga. Jan. 29,
2014), ECF No. 1. Nance was arrested on January 30, 2014, and
he was later charged by Indictment with knowingly escaping an
institutional facility in which he was lawfully confined, in
violation of 18 U.S.C. § 751, by virtue of the criminal
conviction obtained in the Middle District of Florida.
Indictment, United States v. Nance,
2:14-cr-6 (S.D. Ga. Feb. 6, 2014), ECF No. 9. Nance faced a
statutory penalty of not more than five (5) years'
imprisonment and a term of supervised release of not more
than one (1) year. Penalty Cert., United States v.
Nance, 2:14-cr-6 (S.D. Ga. Feb. 6, 2014), ECF No. 10.
Nance was originally represented by David Osborne, and, after
Nance filed a letter requesting new counsel and a hearing on
the matter, the Court appointed Keith Higgins to represent
Nance. CJA 20s, United States v. Nance, 2:14-cr-6
(S.D. Ga. Feb. 7 & Mar. 11, 2014), ECF Nos. 17, 26. In
conformity with its liberal discovery policy, the United
States Attorney's Office disclosed all materials in its
possession, including a copy of Officer Brown's personnel
file. (Doc. 3, p. 2.); Min. Entry, United States v.
Nance, 2:14-cr-6 (S.D. Ga. May 21, 2014), ECF No. 90.
jury was empaneled, Nance chose to change his plea to guilty
without a written plea agreement. Id.; Change of
Plea, United States v. Nance, 2:14-cr-6 (S.D. Ga.
May 21, 2014), ECF No. 93. The Honorable Lisa Godbey Wood
conducted a change of plea, or Rule 11, hearing on the same
day Nance changed his plea. After discussion with Nance of
all of the rights he was waiving by pleading guilty to the
charged offense, Judge Wood informed Nance that, if she
accepted his plea, the sentencing phase was all that remained
of his case. Change of Plea Hr'g Tr., United States
v. Nance, 2:14-cr-6 (S.D. Ga. Jan. 23, 2015), ECF No.
117, p. 8. Nance affirmed he was satisfied with Mr.
Higgins' representation of him and had no complaints
whatsoever. Id. at pp. 8-9. Judge Wood noted the two
(2) essential elements of the escape offense and asked Nance
whether he understood that pleading guilty was an admission
that those elements were satisfied. Judge Wood then advised
Nance that the maximum statutory penalty she could impose was
“not more than five (5) years['] imprisonment, a
fine of not more than $250, 000, a term of supervised release
of not more than a year, and a special assessment of
$100.” Id. at p. 10. Nance expressed his
understanding of the maximum penalties. Id. Judge
Wood explained to Nance she had to impose a sentence upon
him, and in so doing, she had to take into consideration the
advisory Sentencing Guidelines, any possible departures from
the Guidelines, all of the sentencing factors set forth in 18
U.S.C. § 3553, and his offense behavior. Id. at
pp. 11-12. After accepting Nance's plea of guilty, Judge
Wood advised Nance she would have a United States Probation
Officer prepare a Pre-Sentence Investigation report
(“PSI”), which would be disclosed to Nance and
the Government, and then the Court would schedule a
sentencing hearing. Id. at pp. 27-28.
PSI, Nance's base offense level for escape was 13. PSI,
¶ 16 (citing U.S.S.G. § 2P1.1(a)(1)). Five (5)
levels were added for specific offense characteristics due to
Nance's escape offense involving the use or threat of
force and assaulting a correctional officer. Id. at
¶ 17 (citing U.S.S.G. § 2P1.1(b)(1)). As support
for the five-level increase, United States Probation Officer
Brian Mills stated in the PSI:
Nance then rushed past the CO, entering the cell. It was
believed that the defendant's motivation was, at least in
part, to retrieve a contraband item (believed to be a
cellular telephone) in an effort to prevent the item from
being found and seized by the CO. A struggle between Nance
and the CO ensued during which both individuals fell to the
ground. The struggle continued on the ground until the CO
became fatigued and Nance was able to extricate himself from
the altercation. The defendant then fled from the building,
making his escape into a wooded area beyond the
facility's boundary line.
Id. at ¶ 6. As another specific offense
characteristic, four (4) levels were subtracted based on
Nance's escape from non-secure custody. Id. at
¶ 18 (citing U.S.S.G. § 2P1.1(b)(3)). Probation
Officer Mills did not award Nance with a further reduction
for acceptance of responsibility because Nance
“vehemently denie[d] that he used any degree of force
to effect his escape. This position conflicts with the facts
of this [case, ] which establish that the defendant struggled
with the CO when fleeing his cell.” Id. at
¶ 13. With a total offense level of 14 and a criminal
history category of V, Nance's recommended
Guidelines' range was 33 to 41 months' imprisonment.
Id. at ¶ 83.
sentencing hearing, Judge Wood overruled Nance's
objections to the PSI regarding his use of an alias and the
findings as to Nance's substance abuse history and stated
that neither of these objections affected her sentence
calculation. Sent. Hr'g Tr., United States v.
Nance, 2:14-cr-6 (S.D. Ga. Dec. 5, 2014), ECF No. 114,
pp. 65-67. Nance also objected to Probation Officer
Mills' recommendation that Nance not receive a reduction
for acceptance of responsibility. Judge Wood sustained this
objection and awarded Nance a two-level reduction.
Id. at p. 67. In addition, Nance objected to the
recommended five-level increase for the use of force,
id. at pp. 5-6, and the Court heard testimony and
argument as to this objection.
Brown provided extensive testimony regarding the events of
January 28, 2014, particularly the circumstances surrounding
Nance's escape. Id. at pp. 8-44. Officer Brown
received anonymous information that Nance had at least one
cell phone in his cubicle. Responding to that information,
Officer Brown directed Nance and his cell mate to step
outside of their cubicle and submit to a pat down search so
that Officer Brown could conduct a shakedown of the cubicle.
Id. at pp. 14-15. Nance did not immediately follow
Officer Brown's orders to step outside and submit to a
pat search but “reluctantly” and
“slowly” complied with the orders after Officer
Brown gave them a third time. Id. at pp. 16-18.
Officer Brown stated Nance was acting nervously, like there
was something he did not want Officer Brown to find.
Id. at p. 18. Officer Brown testified that he then
told Nance to step away from the cubicle so that he could
conduct the shakedown, and Nance complied after Officer
Brown's additional directive. Id. at pp. 18-20.
However, Officer Brown turned his head and noticed Nance was
standing in the entry way again. Nance stepped back into the
cubicle, preventing Officer Brown from conducting the
shakedown. Id. at p. 21. Despite Officer Brown's
directives to step back and to walk away, Nance kept walking
toward Officer Brown. Id. Nance had his hands in
front of his body and tried to get around Officer Brown by
pushing him. Id. at p. 22. When Nance pushed him,
Officer Brown grabbed him in a bear hug in an effort to
restore order. Nance tried to break free from Officer
Brown's grasp, and Officer Brown repeatedly told him to
stop resisting. Id. at p. 23. Officer Brown and
Nance were “tussling”, and they fell to the
floor. Id. at p. 24. Officer Brown was able to
activate his radio's body alarm to signal an emergency
situation to the control center. Officer Brown also was able
to hold Nance “for another minute or two” until
he was “too tired” to hold Nance any longer.
Id. at pp. 24, 39. Nance got off the floor, grabbed
something off his bed, and walked out of the cubicle. Another
officer came to Nance's cubicle to assist Officer Brown
approximately one to two minutes after Nance left this area.
The officers conducted an accountability count, and Nance was
missing from this count. Id. at p. 26. Staff members
searched the grounds for Nance and were unable to find him at
the Prison Camp. Id. at p. 27.
cross-examination, Officer Brown admitted he may have told
Probation Officer Mills at some point that Nance only
“rushed past” him, but the reason that differed
from his testimony at the sentencing hearing and what he
initially told Probation Officer Mills had nothing to do with
being under oath. Id. at pp. 35-37. On re-direct,
Officer Brown clarified that the memorandum he wrote after
the incident with Nance was consistent with his testimony at
the sentencing hearing. Id. at p. 43. Officer Brown
reiterated that Nance pushed him, although Nance did nothing
else to get past Officer Brown. Id. at p. 39.
Officer Mills testified that he stated in Nance's initial
PSI that Nance pushed Officer Brown. Id. at p. 48.
After written objections were submitted, Probation Officer
Mills submitted a revised PSI as the final PSI to the Court,
and the final PSI indicated Nance “rushed past”
Officer Brown. Id. Probation Officer Mills stated he
made this revision after speaking with Officer Brown, who did
not mention anything about being pushed during their
conversation. Id. at p. 49. Upon Judge Wood's
inquiry, Probation Officer Mills testified he recommended
Nance receive the five-level enhancement based on Officer
Brown's statements that Officer Brown tried to restrain
Nance, but Nance “resisted” and the two had a
“struggle or wrestling match which basically went to
the ground. . . . Officer Brown continued to try to gain
control of Mr. Nance, but [he] continued to fight to get away
from [Officer Brown].” Id. at p. 50. Officer
Mills also testified that he took Officer Brown's report
from within 24 hours after the incident to establish the
offense conduct in this case, rather than his conversation
with Officer Brown seven (7) months after the fact.
Id. at p. 51.
Higgins argued that Officer Brown's credibility had been
impeached because he testified that Nance had pushed him,
which was different than what he had told Probation Officer
Mills, who had inquired about the facts of this case for a
specific purpose. Id. at p. 58. Mr. Higgins also
argued Officer Brown's credibility was impeached based on
his admission that he had been disciplined for having
violated his duties for credit card fraud. Mr. Higgins
declared that, while there was no force involved, to the
extent it could be construed as force, said force was not
used for the purpose of Nance's escape. Id. at
p. 59. For these reasons, Mr. Higgins submitted the
five-level enhancement should not apply. Id. at pp.
Wood overruled Nance's “main objection”
regarding the five-level enhancement. Id. at p. 66.
In so doing, Judge Wood found:
And having had the opportunity to watch the witnesses testify
live here in court today and assess their credibility, and
thinking about just common sense and logic as it applies to
what transpired back on January 28th, based, in part, on the
personal observations I was able to make today, I find by a
preponderance of the credible evidence, first, that some type
of physical altercation did occur between the correctional
officer and Mr. Nance.
I find that Mr. Nance instigated the physical contact. I am
unable to tell whether there was pushing, and if so, at what
point it did occur. But a certain degree of physical force
would inherently be necessary to influence the outcome of
that bear hug that occurred.
As I say, it is the Court's specific finding, based on my
assessment of credibility, that Mr. Nance did instigate the
physical conduct and force. I also find, with regard to
whether that force was involved in the escape, that it was;
that Mr. Nance's actions transitioned to escape almost
immediately. Once he was able to get free from the
correctional officer's grasp, he grabbed his contraband
and immediately proceeded to leave the facility as far as
anyone could tell. It would be hard to wind up in downtown
Brunswick from Jesup without having realized some use of
force in that connection.
As a result, those objections are overruled, and the
five-level increase is properly placed in this [C]ourt.
Id. at pp. 66-67.
Wood reduced Nance's total offense level by two (2)
levels based on acceptance of responsibility. Thus, Judge
Wood found Nance's total offense level to be 12, and he
was in criminal history category V. Judge Wood then found
Nance's Guidelines' range to be 27 to 33 months in
prison and one to three years' supervised release. Judge
Wood noted the statutory maximum penalty was five years'
imprisonment. Id. at pp. 68-69.
support of mitigation of sentence, Mr. Higgins noted the
testimony of Erin Chalfant, a case management coordinator at
the Jesup, Georgia, facility. Ms. Chalfant offered that Nance
had previously been allowed to travel on his own to the
Prison Camp in Jesup, and Nance reported to the facility as
he should have. Id. at pp. 55-57, 69. Mr. Higgins
sought a downward variance, as well, so that Nance could help
care for his parents. Id. at pp. 69-70. He also
asked that Nance's sentence in this case be ordered to
run concurrently with his sentence obtained in the Middle
District of Florida. Id. at p. 72. In contrast, the
Government requested that the Court impose a sentence at the
higher end of the Guidelines' range because Nance's
escape from the Prison Camp is an inherently dangerous crime
under Section 3553(a) and that his sentence be imposed to run
consecutively to the term of imprisonment Nance was already
serving. Id. at pp. 73-74, 77. Nance addressed the
Court and admitted to having escaped and having had “a
big altercation” with Officer Brown, but he said he
intended on going back to the Prison Camp. Id. at p.
Wood sentenced Nance to 31 months' imprisonment, to be
served consecutively to the sentence he obtained in the
Middle District of Florida. Judge Wood specifically stated,
I will say, having considered the § 3553 factors, that I
would impose 31 months based on those factors regardless of
the outcome of certain of the objections that were leveled.
Looking at the need to curtail escapes from federal
institutions, looking at the nature of the offense that
actually did occur, and the good and the bad in Mr.
Nance's background, 31 months ...