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Nance v. United States

United States District Court, S.D. Georgia, Brunswick Division

October 3, 2017

MELVIN NANCE, Movant,
v.
UNITED STATES OF AMERICA, Respondent. Civil Action No. 2:16-cv-77

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         Movant 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).[1] 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[2], 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.

         BACKGROUND

         Nance 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 Camp grounds.

         The 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.

         After a 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[3], 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.

         In the 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.

         At the 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.

         Officer 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.

         On 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.

         Probation 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.

         Mr. 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.[4] 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. 61-62.

         Judge 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.

         Judge 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.

         In 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. 78.

         Judge 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 ยง 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 ...

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