               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0163n.06

                                       Case No. 13-2685                               FILED
                                                                                Mar 02, 2015
                                                                            DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


THELMON F. STUCKEY, III,                           )
                                                   )
       Petitioner-Appellant,                       )       ON APPEAL FROM THE UNITED
                                                   )       STATES DISTRICT COURT FOR
v.                                                 )       THE EASTERN DISTRICT OF
                                                   )       MICHIGAN
UNITED STATES OF AMERICA,                          )
                                                   )
       Respondent-Appellee.                        )


       BEFORE: SILER, ROGERS, and COOK, Circuit Judges.

       COOK, Circuit Judge. Thelmon Stuckey appeals the district court’s denial of his motion

to amend his federal habeas petition. Finding no error, we AFFIRM.


       A jury convicted Stuckey, a leader and “enforcer” of a violent drug gang, of murder to

prevent a person from providing information concerning a federal crime to federal authorities

under the federal witness-tampering statute, 18 U.S.C. § 1512. An eyewitness to the murder

testified at trial that Stuckey shot Darbins, a member of Stuckey’s drug organization, eleven

times before bending over his body, kissing him, and saying “that he loved him . . . but he talked

too much.” United States v. Stuckey, 253 F. App’x 468, 474–75 (6th Cir. 2007). We affirmed

Stuckey’s murder conviction. See id. at 492.
Case No. 13-2685
Stuckey v. United States


       Years later, Stuckey moved to vacate his sentence under 28 U.S.C. § 2255, relying in his

proposed amended petition on the Supreme Court’s decision in Fowler v. United States, 131 S.

Ct. 2045 (2011).    Fowler, he argued, rendered his murder conviction invalid “because the

government was required to prove more than just a possibility that Darbins would have

cooperated with federal authorities.” The district court rejected Stuckey’s proposed amendment

as futile because Fowler, as the court understood it, would not support Stuckey’s claim. This

court granted Stuckey a certificate of appealability to determine whether the district court

properly denied his motion to amend.


       Though we ordinarily review a district court’s denial of a motion to amend for abuse of

discretion, we review de novo when, as here, the court denies the motion because amendment

would be futile. Bennett v. MIS Corp., 607 F.3d 1076, 1100 (6th Cir. 2010) (citing Parry v.

Mohawk Motors of Mich., Inc., 236 F.3d 299, 306 (6th Cir. 2000)).


       Stuckey’s argument stems from a misreading of Fowler. Fowler concerned the federal

nexus requirement for convictions under the witness-tampering statute when the defendant acts

with an intent to prevent communication to law enforcement officers in general. To establish

such a nexus, Fowler requires proof of a “reasonable likelihood” that at least one hypothetical

communication (by Darbins) would have been made to a federal (as opposed to state) law

enforcement officer. 131 S. Ct. at 2052. Here, the federal investigation into Stuckey’s drug

organization led to Darbins’s federal indictment, and interest in getting Darbins to cooperate

prompted the FBI’s search for him that uncovered his murder. Had Darbins communicated with

law enforcement, “it is reasonably likely . . . that a federal law enforcement officer would have

been on the receiving end of this communication.” (R. 336, Op. & Order at 20.)


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Case No. 13-2685
Stuckey v. United States


       As the government notes, Stuckey tries to import the “reasonable likelihood standard[]

from its proper place in proving a federal nexus where that is unclear, to a requirement to prove

the victim’s intent.” That is, Stuckey reads Fowler as requiring the government to show a

reasonable likelihood that Darbins would have, in fact, communicated with a federal officer had

he survived. But Fowler requires no such showing. The district court thus properly concluded

that amendment would be futile. We AFFIRM.




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