Avery Clemmons v. United States , 376 F. App'x 507 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0275n.06
No. 08-4012
FILED
May 04, 2010
LEONARD GREEN, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
AVERY CLEMMONS, )
) ON APPEAL FROM THE
Petitioner-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE SOUTHERN
v. ) DISTRICT OF OHIO
)
UNITED STATES OF AMERICA, ) OPINION
)
Respondent-Appellee. )
)
BEFORE: BATCHELDER, Chief Judge, WHITE, Circuit Judge, and GREER*, District
Judge.
HELENE N. WHITE, Circuit Judge. Petitioner Avery Clemmons (“Clemmons”) appeals
the district court’s denial of his motion for permission to file a motion pursuant to Fed. R. Crim. P.
36 (“Rule 36"). The district court had previously prohibited further filings by Clemmons without
prior approval of the court. We AFFIRM.
I.
At the time Clemmons was indicted in federal court on November 6, 1991 for conspiracy to
distribute cocaine and possession with intent to distribute cocaine, he was being held in a state
facility awaiting trial on state charges. The federal government issued a writ ad prosequendum for
him to appear in the federal district court. In 1992, United States District Judge Carl B. Rubin
*
The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
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entered judgment on a jury finding of guilty, and sentenced Clemmons to within-Guidelines
sentences of three concurrent terms of 240 months’ imprisonment. Judge Rubin made no mention
whether the federal sentences should run concurrently with, or consecutively to, any state court
sentence Clemmons might receive if convicted of the state charges for which he was previously held.
Clemmons’ direct appeal of his federal conviction was unsuccessful.
Clemmons was returned to the custody of the state authorities. He pled guilty to the state
charges, and was sentenced on November 10, 1992 to “five (5 actual) to twenty-five (25) years and
court costs; to run concurrent with federal sentence.”
While serving his state sentence, Clemmons filed a motion in the district court, pursuant to
28 U.S.C. § 2255, seeking to amend his federal sentence to state that he would receive credit against
his federal sentence for time served on his state sentence. Judge Rubin denied the motion on July
20, 1993, holding that Clemmons was not to receive credit towards his federal sentence for time
served on his state sentence. Clemmons did not appeal that decision. Clemmons filed additional
motions in 1998, to no avail.
Around March of 2000, Clemmons was released from state custody and transferred to federal
custody to begin serving his federal sentence. The Bureau of Prisons, presumably unaware of Judge
Rubin’s ruling on Clemmons’ § 2255 motion, requested that the district court rule whether the
federal sentence was to be served concurrently with, or consecutively to, the state sentence. Because
Judge Rubin was deceased, a different judge presided over the matter. A U.S. probation officer
made a recommendation in a March 10, 2000 memorandum to the district court. Without referring
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to Judge Rubin’s § 2255 order, the probation officer stated that Judge Rubin had previously “failed
to specify [his] intent” in sentencing, and recommended that the court order that the federal sentence
run concurrently with the state sentence. The district court accepted the recommendation and
ordered that Clemmons’ federal sentence be reduced by the time he had served in state custody.
The Government moved for reconsideration, and, on May 18, 2000, the district court vacated
its March 13, 2000 order and ordered that Clemmons’ federal sentence run consecutively to his state
sentence. The district court explained:
On March 13, 2000 the United States Probation Office represented to the
Court that the original sentence imposed by the late Judge Carl B. Rubin in this
matter did not specify whether the Defendant’s federal sentence was to be served
concurrently or consecutively to his state sentence of imprisonment. That
representation was true, but incomplete. In fact, that precise issue was raised by
Defendant is [sic] his first motion to vacate, set aside or correct sentence pursuant to
28 U.S.C. § 2255 filed June 23, 1993. It was also definitively decided by Judge
Rubin in his Order dated July 20, 1993 where he denied Defendant’s motion and
clarified that the original sentence was intended to be consecutive to Defendant’s
state sentence of imprisonment. It does not appear that Defendant appealed Judge
Rubin’s decision.
Defendant has since pursued a barrage of post conviction filings with frequent
reiterations of previously raised and resolved issues. Indeed[,] Defendant raised this
precise issue again in his successive motion to vacate, set aside or correct sentence
filed August 31, 1998. That motion was transferred to the Court of Appeals for a
ruling on authorization for filing as required under §§ 2244(b)(3) and 2255 [footnote
omitted]. Defendant timely appealed that order. The Court of Appeals denied
Defendant’s authorization to file the second motion.
Defendant cites no apposite caselaw or statutory law in response to the
government’s motion. The Court, therefore, concludes that its Order of March 13,
2000 was improvidently issued and it is hereby VACATED. Judge Rubin’s Order
dated July 20, 1993 is res judicata in this matter. Defendant’s federal sentence is to
be served consecutively to his state sentence of imprisonment.
(internal citations omitted).
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Clemmons filed a motion for reconsideration, which the court denied on July 7, 2000,
holding that there was “no ambiguity in Judge Rubin’s sentencing order nor any inconsistency
between the transcript of the sentencing hearing and the written judgment order.”
Subsequently, Clemmons filed a motion for resentencing, which was also denied. Clemmons
then filed a motion for reconsideration of the district court’s denial of his motion for resentencing
pursuant to Fed. R. Civ. P. 59(e), which the court denied for lack of jurisdiction on April 29, 2003.
The court held that although Clemmons purported to be bringing a motion pursuant to Fed. R. Civ.
P. 59(e), he was in fact bringing a successive 28 U.S.C. § 2255 motion, and since he had not received
the permission of the Sixth Circuit to do so, the district court did not have jurisdiction to consider
the motion. The court also noted that it would not grant relief even if it had jurisdiction, because
Clemmons “has made no new arguments for relief” and “[h]is previous arguments were and remain
without merit.” The court then transferred Clemmons’ motion, interpreted as a successive 28 U.S.C.
§ 2255 motion, to the Sixth Circuit for consideration whether a successive motion should be
permitted. This Court denied permission.
After denying the motion for reconsideration, the district court also imposed filing
restrictions on Clemmons:
Because Petitioner has abused the judicial process by his repeated meritless
filings and refusal to comply with the clear directions of the Court and applicable
statutes, as well as, the Rules of Civil Procedure, he should be prohibited from
further filings under this case number in collateral attack upon his conviction and/or
sentence without the prior approval of this Court. The Clerk of this Court should not
accept any further pleadings from Petitioner in this matter.
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Clemmons v. United States
Clemmons did not appeal the order restricting his ability to file documents with the district court.
On September 21, 2007, Clemmons filed a motion seeking permission to file a Rule 36
motion. The district court denied permission to file the motion on December 12, 2007, in a notation
order. Clemmons filed a notice of appeal of this denial on December 21, 2007, and a motion to
proceed in forma pauperis. The district court denied approval for the filing of both documents and
they were returned to Clemmons unfiled. Clemmons then sought a writ of mandamus from the Sixth
Circuit directing the district court to file his notice of appeal. On August 5, 2008, a panel of this
Court ordered the district court to either file an answer to the petition for writ of mandamus or
accept Clemmons’ notice of appeal. On August 6, 2008, the district court ordered the clerk of court
to accept Clemmons’s notice of appeal as of the date of its submission, January 3, 2008. In that
order, the court stated that “the Court finds that petitioner’s Rule 36 motion is yet another attempt
by petitioner to obtain Court review of a sentencing issue already decided by the Court” and
therefore denied him permission to proceed in forma pauperis because an appeal would be frivolous
and not taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). The clerk filed the Notice of Appeal.
This Court then dismissed the petition for mandamus as moot.
II.
We first observe that we reject the Government’s argument that “[r]efusal to permit a
particular motion to be filed, due to filing restrictions, is not itself a final, appealable order” under
28 U.S.C. § 1291, and conclude that this postjudgment order is appealable because it “disposes of
all issues raised in the motion.” Thomas v. Blue Cross & Blue Shield Ass’n, 594 F.3d 823, 829 (11th
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Cir. 2010); see also Solis v. Current Dev. Corp., 557 F.3d 772, 776 (7th Cir. 2009) (“[A]n order that
addresses all the issues raised in the motion that sparked the postjudgment proceedings is treated as
final for purposes of section 1291.”); United States v. Gonzales, 531 F.3d 1198, 1202 (10th Cir.
2008) (although finding of contempt not “final” pre-judgment, it is “final” post-judgment); Roose
v. Patrick, 98 F. App’x 719, 723 (10th Cir. 2004) (where district court order struck documents from
docket for not complying with filing restrictions, there was “no question that the order fully disposed
of all the issues raised in [the] motion.”).
We find no error in the district court’s denial of permission to file a Rule 36 motion.1 Rule
36 states: “After giving any notice it considers appropriate, the court may at any time correct a
clerical error in a judgment, order, or other part of the record, or correct an error in the record arising
from oversight or omission.” To qualify for correction under Rule 36, “[a] clerical error must not
be one of judgment or even of misidentification, but merely of recitation, of the sort that a clerk or
amanuensis might commit, mechanical in nature. Rule 36 has been consistently interpreted as
dealing only with clerical errors, not with mistakes or omissions by the court.” United States v.
Penson, 526 F.3d 331, 335 (6th Cir. 2008) (internal citations and quotation marks omitted); United
States v. Manns, 277 F. App’x 551, 555 n.1, 556 (6th Cir. 2008) (affirming use of Rule 36 to correct
written judgment from “276 months consisting of 300 months on each count” to “276 months
1
The parties disagree whether our review is de novo or for abuse of discretion. Clemmons
argues we should apply the de novo standard applicable to denials of Rule 36 motions. The
Government argues we should apply the abuse of discretion standard applicable to the initial
imposition of filing restrictions. This case does not require our resolution of this issue, because we
find the appeal fails under either standard.
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Clemmons v. United States
consisting of 276 months on each count” because the district court “never made a mistake regarding
the total term of imprisonment”); United States v. Saikaly, 207 F.3d 363, 372 (6th Cir. 2000)
(ordering district court to correct judgment, pursuant to Rule 36, that found defendant guilty of
offense that was vacated). Clemmons attached to his motion for permission to file a Rule 36 motion
the Rule 36 motion he wished to file. That motion, and his arguments on appeal, make clear that he
seeks, once again, to challenge Judge Rubin’s 1993 ruling that he not receive credit for time served
on his state sentence. This is not a motion for the correction of a “clerical error,” but instead is a
collateral attack on the district court’s prior order,2 and therefore is not properly the subject of a Rule
36 motion.
Clemmons also argues that he was not required to obtain the district court’s permission to
file a Rule 36 motion because that motion did not fall within the boundaries of the court’s
restrictions. We disagree. The district court imposed filing restrictions because it found Clemmons
had “abused the judicial process by his repeated meritless filings and refusal to comply with the clear
directions of the Court and applicable statutes, as well as, the Rules of Civil Procedure.” The filing
restrictions the district court imposed required Clemmons to obtain prior approval of the court for
“further filings under this case number in collateral attack upon his conviction and/or sentence.”
This description encompasses the Rule 36 motion Clemmons sought to file here.
2
As such, it is properly interpreted as a successive § 2255 motion, for which Clemmons has
not obtained the permission of this Court. See 28 U.S.C. §§ 2244(b)(3)(A), 2255(h). This same
principle merits the dismissal of Clemmons’ argument that Judge Rubin lacked jurisdiction to
consider Clemmons’ initial § 2255 motion.
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Finding no error in the district court’s denial of Clemmons’ motion for permission to file a
Rule 36 motion, we AFFIRM.
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