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Lovett v. United States

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

April 23, 2018

WILLIE CLINTON LOVETT, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

         After Willie Lovett was convicted for his role in “an illegal and swindling gambling operation” while serving as the chief of the Savannah-Chatham Metropolitan Police Department, United States v. Lovett, 662 Fed.Appx. 838, 840 (11th Cir. 2016), this Court sentenced him to 90 months' imprisonment. Doc. 193.[1] He appealed, arguing that the Government did not present evidence sufficient for the jury to find him guilty, the Government impermissibly struck five African-American potential jurors from the jury pool, and the Court improperly applied a six-level enhancement. Lovett, 662 Fed.Appx. at 840.

         The Court of Appeals affirmed his sentence, concluding that Lovett had failed to make a prima facie case, under Batson v. Kentucky, 476 U.S. 79 (1986), that the Government struck those jurors solely on the basis of their race. Id. at 847-48. The Court also “easily conclude[d] that the government produced enough evidence” to support the jury's verdict, id. at 851, and that the district court had not erred in evaluating the witness evidence on payments Lovett accepted and applying the sentencing enhancement under U.S.S.G. § 2C1.1(b)(2) (enhancement triggered by payments exceeding $5, 000). He now seeks to vacate his sentence, contending that the Court erred in applying that six-level sentencing enhancement and ordering that he participate in the Inmate Financial Responsibility Program. Doc. 151. He further countends that his counsel deficiently argued his Batson claim both at trial and on appeal. Id.

         I. ANALYSIS

         A. The Procedurally Barred Claims

         As set forth in this Court's screening Order:

Lovett . . . again argues that the Court incorrectly applied a six-level sentencing enhancement ([doc. 251] at 20-28), an argument already introduced and rejected on appeal. See Lovett, 662 Fed.Appx. 838. He cannot raise it again in this Court in a § 2255 motion. Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014) (“It is long settled that a prisoner is procedurally barred from raising arguments in a motion to vacate his sentence, 28 U.S.C. § 2255, that he already raised and that we rejected in his direct appeal.”); United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000) (“Once a matter has been decided adversely to a defendant on direct appeal it cannot be re-litigated in a collateral attack under section 2255.”); Mills v. United States, 36 F.3d 1052, 1056 (11th Cir. 1994) (“[P]rior disposition of a ground of error on direct appeal, in most cases, precludes further review in a subsequent collateral proceeding.”); United States v. Rowan, 663 F.2d 1034, 1035 (11th Cir. 1981) (“This Court is not required on § 2255 motions to reconsider claims of error raised and disposed of on direct appeal.”).
FN 1. Lovett further contends that the 2015 amendment to the Sentencing Guidelines provides grounds to unwind his sentence. Doc. 251 at 26-28. He contends that the enhancement applied pursuant to U.S.S.G. § 2C1.1(b)(2) is somehow “abrogate[d]” by unidentified “changes” made by the amendment. Doc. 251 at 26. It is unclear, however, how the amendment to § 2C1.1 in November 2015 changes anything. Pursuant to U.S.S.G. § 1B1.11, the Guideline Manual in effect at the time a defendant is sentenced is to be used in determining the applicable sentencing guideline range. The 2014 Guidelines Manual was thus properly used in determining Lovett's sentencing guideline range at his February 2015 sentencing. The later amendment, which is not retroactive, does nothing for him. See United States v. Conley, ___ F.Supp.3d ___, 2017 WL 5953153 at n. 6 (E.D. Ken. Dec. 1, 2017).

         Doc. 252 at 2-3. Lovett objects that the Court “distort[ed]” the grounds set forth in his motion, and he filed an amended motion to elucidate his § 2255 challenges. His motion to amend (doc. 254) is GRANTED as unopposed, but it offers him no further relief, as he only affirms that these challenges are procedurally barred.

         Lovett amends his motion to contend that “exceptional circumstances” warrant allowing him to reintroduce his challenge to the six-level enhancement. Doc. 254 at 3-4. He notes that the Court of Appeals' opinion was issued per curiam and argues that such an opinion “persists as the most controversial form of summary disposition[, ] with the petitioner given no opportunity to file additional briefs on the merits or to argue the decision orally before the court.” Id. at 4 (quoting “Black's Dic., 10th Ed. at 1266”). He, however, mistakes a listed example for the dictionary definition.

         A per curiam opinion is merely one “handed down by an appellate court without identifying the individual judge who wrote the opinion.” Opinion, Black's Law Dictionary (10th ed. 2014). The section Lovett misquotes actually describes a specific type of per curiam opinion issued by the Supreme Court in simultaneously granting certiorari and disposing of the merits, such that the parties do not get their chance at oral argument before the highest court. Id. (quoting Robert L. Stern et al., Supreme Court Practice 320 (8th ed. 2002)). In other words, the definition he seizes upon has nothing to do with the unanimous Eleventh Circuit opinion affirming his conviction. See United States v. Willie Lovett, No. 15-10707 (11th Cir.) (reflecting full briefing schedule and oral argument held prior to the issuance of a unanimous opinion affirming his conviction on all grounds).

         In practice, per curiam opinions are normal and, in this case, weigh even more heavily against finding any exceptional circumstance overcoming the procedural bar against relitigating claims already decided by the Court of Appeals. Here, the Eleventh Circuit panel faced these exact same arguments and affirmed Lovett's conviction both unambiguously and unanimously. It is unclear what possible “exceptional circumstance” or “fundamental defect which inherently results in a complete miscarriage of justice” Lovett believes results from this Court's application of the well-settled procedural bar to re-evaluating claims already presented to and ruled upon on the merits by the Court of Appeals. Doc. 254 at 5; Stoufflet, 757 F.3d at 1239; Nyhuis, 211 F.3d at 1343; Mills, 36 F.3d at 1056; Rowan, 663 F.2d at 1035.

         Lovett also renews his argument that changes to U.S.S.G. § 2C1.1 in November 2015 (“Amendment 791”) touches his sentence, apparently believing that the amendment provides “new information” or an “exceptional circumstance” which would permit the Court to review the six-level enhancement already affirmed by the Eleventh Circuit. See doc. 254 at 9; Amendment 791, Amendments to the Sentencing Guidelines, available at https://guidelines.ussc.gov/ac/791 (explaining that the guidelines were amended to account for “inflation, ” and that § 2C1.1 (among other sections) had been adjusted to “conform” to the “inflationary adjustments” made to “the monetary tables” of Section 2). But that amendment is not retroactive. See U.S.S.G. § 1B1.10(d) (listing those amendments with retroactive effect to reduce a defendant's term of imprisonment; Amendment 791 is not listed); U.S.S.G. § 1B1.10, comment. (n.1(A) (“Eligibility for consideration [for a sentence reduction] is triggered only by an amendment listed in subsection (d) that lowers the applicable guideline range.”) (emphasis added)). Indeed, the Commission specified that the “effective date” of the Amendment was November 1, 2015 -- not any time prior. See Amendment 791. Nothing about Lovett's sentence, which was handed down seven months before the November 1, 2015 effective date, is changed by the amendment. This Court is procedurally barred from considering his challenge to the six-level sentencing enhancement.

         B. The IFRP Claim

         The Court also explained in its screening order that Lovett had no § 2255 claim for the repayment of his special assessment. Doc. 252 at 3-4 (noting that it was unclear he was even a participant in the Bureau of Prison's Inmate Financial Responsibility Program (IFRP), [2] and that regardless, “[t]he Court ordered the terms of his payments, not that he participate in the program to develop a repayment plan with the Bureau's help.”) (footnote added). Lovett contends that the Court “misconstrue[d]” his complaint, doc. 254 at 7, explaining that because the Court's order directing his repayments sounds an awful lot like the Bureau of Prison's IFRP “rhethoric” it must be an improper order for him to participate in the IFRP. Id. at 8; see doc. 193 at 6 (judgment imposing $660 assessment and $50, 000 fine); doc. 220 at 30-31 (sentencing transcript, detailing the Court's order that Lovett pay his fine in quarterly installments while in custody for 90 months, and monthly installments while on supervised release for an additional 47 months). But ...


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