UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

MELVIN ANDREW MORRIS,

CRIMINAL CASE NO. 14-CR-20427

Petitioner, CIVIL CASE NO. 19-CV-13263

v.

 DISTRICT JUDGE THOMAS L. LUDINGTON

UNITED STATES OF AMERICA, MAGISTRATE JUDGE PATRICIA T. MORRIS

Respondent.

___________________________/

MAGISTRATE JUDGE=S REPORT AND RECOMMENDATION ON 

PETITIONER=S MOTION UNDER 28 U.S.C. ' 2255 TO VACATE, SET ASIDE, OR 

CORRECT SENTENCE, and MOTION FOR LEAVE TO FILE AMENDED 

PETITION, and RESPONDENT=S MOTION TO DISMISS and MOTION TO STRIKE

(ECF Nos. 295, 297, 301, 303, and 306)

I. RECOMMENDATION

For the following reasons, IT IS RECOMMENDED that Petitioner’s motions (ECF 

Nos. 295, 297, 303) be DENIED and that Respondent=s Motions (ECF Nos. 301, 306) be 

GRANTED and that the civil case be DISMISSED.

II. REPORT

A. Introduction

Petitioner signed a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. '

2255 on October 1, 2019, and it was somehow hand delivered to this federal court on November 

5, 2019. (ECF No. 295.) In addition, Petitioner dated another Motion to Vacate on October 2, 

2019, but the return address on the envelope was Fait Accompli Legal Services, in Dearborn, 

Michigan, and it was postmarked October 29, 2019, and received by the Clerk of the Court on 

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October 30, 2019. (ECF No. 297.) On December 13, 2019, the government filed a motion to 

dismiss the Motions to Vacate. (ECF No. 301.) 

Petitioner filed a motion for leave to amend his Motions to Vacate dated December 4, 

2019, stamped as placed in the prison mail system on December 4, 2019, and e-filed on January 

3, 2020. (ECF No. 303.) Petitioner contends that he needs to amend because the information he 

provided was incorrect because he “filed his first motion under 28 U.S.C. Section 2255 on 

September 28, 2019, by depositing it in the legal mail as per the legal mail procedures of FCI 

Gilmer. Postage for first class mail were prepared.” (ECF No. 303, PageID.2012.) 

On January 14, 2020, the government filed a motion to strike Petitioner’s motion for leave 

to file an amended Motion to Vacate. (ECF No. 306.) In its motion to strikes, the government 

argues this claim is disingenuous because when Petitioner placed documents in the prison mail 

system, the document’s envelope was stamped by the prison yet there is no such stamp on ECF 

No. 295 or 297. (ECF No. 306, PageID.2026, comparing ECF No. 303 that does show the prison 

stamp.) ECF No. 295 was hand delivered so no prison mail stamp would be expected there. ECF 

No. 297 was mailed to the court by Fait Accompli Legal Services so Petitioner could have placed 

this motion in the prison mail to be delivered to Fait Accompli but Fait Accompli failed to 

preserve this evidence or forward it to the Court, if it exists. 

All the above motions have been referred to the undersigned and are ready for Report and 

Recommendations without oral argument. See E.D. Mich. LR 7.1(f)(2).

B. Background

On October 10, 2014, Petitioner pleaded guilty to count 18 of an indictment charging 

Petitioner with distribution of cocaine base, under an aiding and abetting theory, in violation of 

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21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 18 U.S.C.§ 2. (ECF No. 79.) After it was learned that 

Petitioner qualified as a career offender, Petitioner was permitted to withdraw his guilty plea. 

(ECF No. 172.) A jury trial was held from December 1, 2015 through December 4, 2015. 

Petitioner was found guilty on Count 1 of the first superseding indictment, i.e., distribution of 

cocaine base. Petitioner was sentenced to 180 months incarceration and 3 years supervised 

release. (ECF No. 210, PageID.1170-1171.) Petitioner filed a notice of appeal on the same day 

the judgment entered, i.e., March 14, 2016. (ECF No. 210, 211.) The Sixth Circuit Court of 

Appeals filed an opinion on March 15, 2018 and a mandate followed on April 6, 2018. (ECF 

Nos. 279, 280.) The Sixth Circuit affirmed Petitioner’s conviction and sentence and held that 

Petitioner’s two prior felony convictions for domestic assault were properly considered crimes 

of violence under United States Sentencing Guidelines (USSG) § 4B1.2. (ECF No.279.) 

Petitioner’s petition for a writ of certiorari to the United States Supreme Court was filed on 

August June 28, 2018 and the writ of certiorari was denied in a document dated October 1, 2018 

but filed on October 2, 2018. (ECF Nos. 284, 285.) 

On November 26, 2018, Petitioner filed a motion for retroactive application of the 

sentencing guidelines in this federal district court and on December 10, 2018, the motion was 

denied. (ECF No. 288.) Petitioner filed a Notice of Appeal on December 26, 2018 and on April 

15, 2019, the Sixth Circuit Court of Appeals affirmed the district court’s denial of his motion for 

a sentence reduction because Petitioner was ineligible for such a reduction under § 3582(c)(2) 

since the Sentencing Commission did not list Amendment 798 in USSG § 1B1.10(d). (ECF No. 

291.) Petitioner did not seek a writ of certiorari this time. 

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C. Analysis and Conclusion

The Antiterrorism and Effective Death Penalty Act of 1996 (AAEDPA@), Pub. L. No. 104-

132, 110 Stat. 1214 (April 24, 1996), established a one-year statute of limitations on 2255 

petitions, which begins to run on the latest of four possible dates. 28 U.S.C. ' 2255(f). It usually 

runs from the date on which the judgment of conviction becomes final. 28 U.S.C. ' 2255(f)(1). 

When a 2255 petitioner does not file an appeal, the judgment of conviction is final when the time 

for filing a notice of appeal expires. Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th 

Cir. 2004); United States v. Cottage, 307 F.3d 494, 499 (6th Cir. 2002). According to Federal 

Rule of Appellate Procedure 4(b)(1), a defendant has fourteen days from the entry of judgment 

to file a notice of appeal. Gillis v. United States, 729 F.3d 641, 644 (6th Cir. 2013.) When a 

petitioner appeals to the Sixth Circuit, the appeal is dismissed, and there is no evidence that the 

petitioner sought a writ of certiorari to the United States Supreme Court, A§ 2255=s one-year 

limitation period begins to run when the time for seeking such review expires.@ Clay v. United 

States, 537 U.S. 522, 532, 123 S. Ct. 1072, 155 L. Ed. 2d 88 (2003). Where there is no evidence 

that a writ of certiorari was pursued, the limitation period becomes one year after the time for 

seeking certiorari expired, i.e., one year and 69 days after the appeals court issued its mandate 

or one year and 90 days after the court of appeals entered its judgment. Id. If a petition for writ 

of certiorari is filed with the United States Supreme Court, “a conviction becomes final for 

purposes of triggering the one-year limitations period of section 2255 when certiorari is denied, 

regardless of whether a petition for rehearing is filed or when such petition is denied.” Robinson 

v. United States, 416 F.3d 645, 650 (7th Cir. 2005).

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The one-year period can also run from Athe 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.@ 28 U.S.C. ' 2255(f)(3).

In the instant case, since Petitioner appealed and eventually sought a writ of certiorari, his 

case became final on the date the writ of certiorari was denied. The government argues that the 

operative date is the date of denial, October 1, 2018, rather than the date it was filed, i.e., October 

2, 2018. (ECF No. 301, PageID.2006.) Research has not revealed any case dealing with the 

specific question as to whether the date of the document or the filing date is the operative date. 

In order to view the case most favorably for the Petitioner, I will consider the October 2, 2018 

date to be the operative date. 

Using October 2, 2018 as the salient date, Petitioner would have to file his Motion by 

October 2, 2019 to be timely. 

The prison mailbox rule allows a document to be considered filed when it is handed to 

prison authorities for mailing to the Court. Towns v. United States, 190 F.3d 468, 469 (6th Cir. 

1999) (prison mailbox rule applies to 2255 motions). However, since neither of Petitioner’s 2255 

motions (ECF No. 2295, 297) were stamped as placed in the prison mailing system, this rule is 

of no help to Petitioner. Petitioner signed a Motion to Vacate, Set Aside, or Correct Sentence 

under 28 U.S.C. ' 2255 on October 1, 2019, and it was somehow hand delivered to this federal 

court on November 5, 2019. (ECF No. 295.) In addition, Petitioner dated another Motion to 

Vacate on October 2, 2019, but the return address on the envelope was Fait Accompli Legal 

Services, in Dearborn, Michigan, and it was postmarked October 29, 2019, and received by the 

Clerk of the Court on October 30, 2019. (ECF No. 297.) Petitioner may have placed this motion 

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in the prison mail to be delivered to Fait Accompli but Fait Accompli failed to preserve this 

evidence or forward it to the Court, if it exists. Even if Petitioner had placed a draft of the Motion 

in the prison mail system on October 2, 2019, to be sent lawyers at Fait Accompli for their 

assistance, the prison mailbox rule would not provide any relief since the “mailbox rule applies 

only to (1) court filings (2) submitted by pro se prisoners” to the court. Williams v. Russo, 636 

F. App’x 527, 531 (11th Cir. 2016). It does not apply to communications sent to lawyers to be 

reviewed and then forwarded to the court. 

The motion from Fiat Accompli was postmarked October 29, 2019, long after the deadline 

of October 2, 2019 passed. (ECF No. 297.) The document that was hand delivered was not 

received until November 5, 2019, and there is no explanation for any delay between the signing 

of the motion and its delivery. (ECF No. 295.) Accordingly, I suggest that both were untimely 

filed.1

Petitioner does not request equitable tolling but even if he did, I suggest that he is not

entitled to equitable tolling. A petitioner seeking equitable tolling of the statute of limitations 

has the burden of establishing two elements: A(1) that he has been pursuing his rights diligently, 

and (2) that some extraordinary circumstance stood in his way.@ Pace v. DiGuglielmo, 544 U.S. 

408, 418-19, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005). AIneffective assistance of counsel does 

 1 It appears that the three-day period found in Fed. R. Civ. P. 6(d) would not assist Petitioner either. Rule 6(d) provides, 

“When a party may or must act within a specified time after being served and service is made under Rule 5(b)(2)(C) (mail) . 

. . 3 days are added after the period would otherwise expire under Rule 6(a).” This Rule applies to enlarge the time for 

objections to be filed to Report and Recommendations filed by Magistrate Judges and served on parties by mail. See, e.g., 

Brown v. Tritt, 2016 WL 693484, at *1, n. 1 (E.D. Pa. Feb. 22, 2016) (person who was served by mail entitled to an additional 

three days for filing objections to the R&R), accord United States v. Shields, 2018 WL 2728905, *1 (N.D. Cal. June 7, 2018). 

Here, the certiorari denial was served on Petitioner via mail but case law has held that this rule “only enlarges the filing time 

[by three day] when the period of time for acting runs from the service of a notice, not when the time for acting is designated 

from entry of judgment.” McCarty v. Astrue, 528 F.3d 541, 545 (7th Cir. 2008); accord Adams v. Stephens, 2014 WL 

1261415, at *1 (N.D. Texas, Feb. 10, 2014) (Rule 6(d) “does not apply to deadlines for initial filings, such as habeas corpus 

petitions.”); see also Wright & Miller, Federal Practice and Procedure, 4B Fed. Prac. & Proc. § 1171 (4th ed.). 

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not apply in this context, because [petitioner] possessed no right to counsel in the prosecution of 

a ' 2255 motion.@ Brown v. United States, 20 Fed. Appx. 373, 375 (6th Cir. 2001). Petitioner 

was not prevented from using the mail system and he never sought an extension of time in which 

to file the motion. I therefore suggest that Petitioner has not shown that he is entitled to equitable 

tolling. 

Even if the merits of all his documents are considered, the result would be the same. 

Petitioner asserts ineffective assistance of counsel but describes no conduct (ECF No. 295, 

PageID.1977) or provides only conclusory allegations that his “Sixth and Fourteenth 

Amendment rights were violated due to counsel’s deficient actions prior and during his trial. 

Petitioner further contends that but for counsel’s ineffective assistance, Petitioner’s sentence 

would not have been substantively and procedurally unreasonable; which has caused Petitioner’s 

aforementioned rights to be violated.” (ECF No. 297, PageID.1990). Petitioner fails to point to 

one action or failure to act on the part of trial counsel, let alone how that act or failure to act 

caused him any prejudice. These conclusory allegations are woefully inadequate. As Rule 2(b) 

of the Rules governing 2255 motions states, “the motion must: (a) specify all the grounds for 

relief” and “(b) state the facts supporting each ground.” “It is not for the courts to search the 

record and construct arguments. Parties must do that for themselves.” Brenay v. Schartow, 709 

F. App’x 331, 337 (6th Cir. 2017). When a Petitioner fails to even assert any facts or examples 

of alleged ineffectiveness, the court is left guessing and the Court “should not have to guess at 

the nature of the claim asserted.” Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). “Merely 

conclusory allegations of ineffective assistance . . . are insufficient to state a constitutional 

claim.” Wagenstahl v. Mitchell, 668 F.3d 307, 343 (6th Cir. 2012). Said another way, “[a] party 

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waives issues that he adverts to in a perfunctory manner, unaccompanied by some effort at 

developed argumentation.” Thomas v. United States, 849 F.3d 669, 679 (6th Cir. 2017). 

Petitioner’s second and third grounds fail for the same reason. Petitioner’s second ground 

cites his lawyer’s “failure to object to Rule 611 violation” and it also provides no factual 

description (ECF No. 297, PageID.1991) or again states in a conclusory manner that 

[t]he court shall not preclude relevant cross examination pursuant to Rule 611. In 

support of its argument that the Court should preclude any cross-examination of

witnesses that goes beyond the scope of the testimony that the government elicits 

in its direct examination, the government quotes Rule 611(b) as stating that 

“[c]ross-examination should be limited to the subject matter of the direct 

examination and matters affecting the credibility of the witness.” Here, counsel 

failed to object to the violation, which supports Petitioner’s ineffective assistance 

of counsel claims. 

(ECF No. 295, PageID.1978.) Petitioner’s third ground simply states “failure to object to Rule 

701 violation” with no supporting facts. (ECF No. 295, PageID.1980; ECF No. 297, 

PageID.1993). 

Even if the Court were to consider allegations in Petitioner’s motion to amend (ECF No. 

303) Petitioner would not fare any better. Rule 15(a)(2) applies: “a party may amend its pleading 

only with the opposing party’s written consent or the court’s leave. The court should freely give 

leave when justice so requires.” The decision to grant or deny a motion to amend is within the 

sound discretion of the court. Robinson v. Michigan Consol. Gas Co., Inc., 918 F.2d 579, 591 

(6th Cir. 1990). Factors to consider include undue delay in filing the motion, notice to the 

opposing party, prejudice to the opposing party, and the futility of the proposed amendment.

Head v. Jellico Hous. Auth., 870 F.2d 1117, 1123 (6th Cir. 1989) (quoting Hageman v. Signal 

L.P. Gas, Inc., 486 F.2d 479, 484 (6th Cir. 1973)). 

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Petitioner’s additional two sentences under ground one allege that counsel “did object 

once” to leading questions being asked of “key government witness” but he does not name the 

witness nor does he allege why further objections were needed, let alone how any failure to 

object prejudiced him. (ECF No. 303, PageID.2017.) Under ground two, Petitioner at least 

identifies the witness, Detective Petro, but he only states a conclusion that Petro’s “testimony 

improperly interpreting the video when there was nothing preventing the jury from deciding for 

themselves who or what was on the video. (ECF No. 303, PageID.2017.) Petitioner’s third 

ground simply alleges ineffective appellate assistance for failure to raise grounds one and two 

on direct appeal. (Id.) Where, as here, the evidence of guilt is overwhelming, the possibility that 

the jury was “substantially swayed” by allowing Detective Petro to testify as to what was 

happening in a recorded transaction is virtually eliminated, such that any error is harmless. 

United States v. Isaac, 763 F. App’x 478, 482 (6th Cir. 2019). In addition, Petitioner has failed 

to point to any statement made by Detective Petro that “offered an erroneous interpretation of 

the video or could have substantially swayed the jury” Id. Since any amendment would be futile, 

I suggest that the proposed amended complaint would not work to save Petitioner’s claims.

For all these reasons, I recommend that Petitioner’s motions be denied and Respondent’s 

motions be granted.

III. REVIEW

Rule 72(b)(2) of the Federal Rules of Civil Procedure states that A[w]ithin 14 days after 

being served with a copy of the recommended disposition, a party may serve and file specific 

written objections to the proposed findings and recommendations. A party may respond to 

another party=s objections within 14 days after being served with a copy.@ Fed. R. Civ. P. 

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72(b)(2); see also 28 U.S.C. ' 636(b)(1). Failure to file specific objections constitutes a waiver 

of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 155; Howard v. Sec=y of Health & 

Human Servs., 932 F.2d 505, 508 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 950 

(6th Cir. 1981). The parties are advised that making some objections, but failing to raise others, 

will not preserve all the objections a party may have to this Report and Recommendation. Willis 

v. Sec=y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed=n of 

Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). According to E.D. Mich. LR 

72.1(d)(2), a copy of any objections is to be served upon this magistrate judge.

Any objections must be labeled as AObjection No. 1,@ AObjection No. 2,@ etc. Any 

objection must recite precisely the provision of this Report and Recommendation to which it 

pertains. Not later than 14 days after service of an objection, the opposing party may file a 

concise response proportionate to the objections in length and complexity. Fed. R. Civ. P. 

72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each issue raised in the 

objections, in the same order, and labeled as AResponse to Objection No. 1,@ AResponse to 

Objection No. 2,@ etc. If the Court determines that any objections are without merit, it may rule 

without awaiting the response.

Date: January 28, 2020 s/ Patricia T. Morris

Patricia T. Morris

United States Magistrate Judge

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CERTIFICATION

I hereby certify that the foregoing document was electronically filed this date through 

the Court’s CM/ECF system which delivers a copy to all counsel of record. A copy was also 

sent via First Class Mail to Melvin Andrew Morris #50229039 at Gilmer Federal Correctional 

Institution, Inmate Mail/Parcels, P.O. Box 6000, Glenville, WV 26351.

Date: January 28, 2020 By s/Kristen Castaneda 

 Case Manager 

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