United States District Court, E.D. Tennessee, Knoxville
ERIK B. OLDHAM, Petitioner,
UNITED STATES OF AMERICA, Respondent.
W. PHILLIPS, SENIOR UNITED STATES DISTRICT JUDGE.
the Court is Petitioner's pro se motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255 [Doc. 788]. The petition cites Johnson v. United
States, in which the Supreme Court held that the
residual provision of the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e), was unconstitutionally vague
[Id.; Doc. 790]. The United States responded in
opposition on October 27, 2016 [Doc. 792]. Petitioner did not
reply and the time for doing so has now passed. E.D. Tenn.
L.R. 7.1, 7.2. For the reasons below, Petitioner's §
2255 motion [Doc. 788] will be DENIED and DISMISSED WITH
2014, Petitioner pled guilty to conspiring to manufacture at
least fifty grams of methamphetamine, in violation of 21
U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) [Doc. 249].
He faced a statutory penalty range of ten years' up to
life imprisonment for the offense [Doc. 692 ¶ 102].
Based on prior Tennessee convictions for manufacturing
methamphetamine [Id. ¶ 59], and attempted
aggravated burglary [Id. ¶ 69], the United
States Probation Office deemed Petitioner to be a career
offender under Section 4B1.1 of the United States Sentencing
Guidelines with an advisory Guideline range of 262 to 327
months' incarceration [Id. ¶ 103].
26, 2016, the Supreme Court released the Johnson
decision. In light of that decision, Petitioner, through
counsel, objected at sentencing to the Presentence
Investigation Report's conclusion that he qualified as a
career offender [Docs. 589, 690]. Among other things, counsel
argued that the Johnson decision rendered Section
4B1.2's residual clause invalid and that without that
provision this Court could not rely on Application Note
One's inclusion of attempt offenses as the justification
for career offender enhancement [Id.]. In response,
the United States agreed that the Guidelines residual
provision was probably void for vagueness, but contented that
Petitioner's Tennessee attempted aggravated burglary
conviction nonetheless remained a predicate crime of violence
under Application Note One to Section 4B1.2 [Doc. 689].
considering the parties arguments, this Court concluded that
Petitioner was in fact a career offender subject to
enhancement under Section 4B1.1 [Doc. 699] and eventually
granted the United States' motion for downward departure
pursuant to Section 5K1.1 [Docs. 697, 699]. On September 21,
2015, this Court sentenced Petitioner to 188 months'
incarceration followed by five years' supervised release
did not appeal and his conviction became final for purposes
of § 2255(f)(1) on October 5, 2015, at expiration of
time to file the same. See Sanchez-Castellano v. United
States, 358 F.3d 424, 428 (6th Cir. 2004) (explaining an
unappealed judgment of conviction becomes final when the time
for filing a direct appeal has elapsed); Fed. R. App. Proc.
4(b)(1)(A)(i)(“In a criminal case, a defendant's
notice of appeal must be filed in the district court within
14 days after . . . the entry of . . . judgment.”).
Less than one year later-on September 16, 2016-Petitioner
submitted the instant petition [Docs. 788, 790 (challenging
career offender enhancement and claiming ineffective
assistance of counsel at sentencing)].
TIMELINESS OF PETITIONER'S CLAIMS
2255(f) places a one-year statute of limitations on all
petitions for collateral relief under § 2255 running
from either: (1) the date on which the judgment of conviction
becomes final; (2) the date on which the impediment to making
a motion created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
governmental action; (3) the 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; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence. 28 U.S.C. § 2255(f). Supreme
Court precedent makes clear that Johnson's
invalidation of the ACCA residual clause amounted to a new
rule made retroactively applicable on collateral review.
See Welch v. United States, 136 S.Ct. 1257, 1265
(U.S. 2016) (“Johnson is . . . a substantive
decision and so has retroactive effect . . . in cases on
collateral review.”); In re Windy Watkins, 810
F.3d 375, 380-81 (6th Cir. 2015) (finding Johnson
constitutes a new substantive rule of constitutional law made
retroactively applicable on collateral review and thus
triggers § 2255(h)(2)'s requirement for
certification of a second or successive petition). It is yet
to be seen whether the same is true of the “new
rule” that results from application of
Johnson's reasoning in the Guideline context.
See Pawlak v. United States, 822 F.3d 902, 911 (6th
Cir. 2016) (holding that Johnson's vagueness
analysis applies equally to the Guidelines and, as a result,
that the parallel residual provision contained in Section
4B1.2 was void for vagueness); but see In re Embry,
No. 16-5447, 2016 WL 4056056, at *1 (6th Cir. July 29, 2016)
(recognizing that “it is not clear whether to treat
Pawlak as a new rule that the Supreme Court has not
yet made retroactive [to cases on collateral review] or as a
rule dictated by Johnson that the Supreme Court has
made retroactive”). The Court finds that it need not
resolve the issue here, however, because counsel was not
ineffective at sentencing and Petitioner procedurally
defaulted his career offender challenge by not raising the
same on direct appeal.
STANDARD OF REVIEW
relief authorized by 28 U.S.C. § 2255 “does not
encompass all claimed errors in conviction and
sentencing.” United States v. Addonizio, 442
U.S. 178, 185 (1979). Rather, a petitioner must demonstrate
“(1) an error of constitutional magnitude; (2) a
sentence imposed outside the statutory limits; or (3) an
error of fact or law . . . so fundamental as to render the
entire proceeding invalid.” Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting
Mallett v. United States, 334 F.3d 491, 496-97 (6th
Cir. 2003)). He “must clear a significantly higher
hurdle than would exist on direct appeal” and establish
a “fundamental defect in the proceedings which
necessarily results in a complete miscarriage of justice or
an egregious error violative of due process.” Fair
v. United States, 157 F.3d 427, 430 (6th Cir. 1998).
petitioner alleging ineffective assistance of counsel must
satisfy the two-part test set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1987). See also, Huff
v. United States, 734 F.3d 600, 606 (6th Cir. 2013).
First, the petitioner must establish, by identifying specific
acts or omissions, that counsel's performance was
deficient and that counsel did not provide “reasonably
effective assistance, ” Id., as measured by
“prevailing professional norms, ” Rompilla v.
Beard, 545 U.S. 374, 380 (2005). Counsel is presumed to
have provided effective assistance, and the petitioner bears
the burden of showing otherwise. Mason v. Mitchell,
320 F.3d 604, 616-17 (6th Cir. 2003); see also
Strickland, 466 U.S. at 689 (a reviewing court
“must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome
the presumption that . . . the challenged action might be
considered sound . . . strategy” (internal citation
the petitioner must demonstrate “a reasonable
probability that, but for [counsel's acts or omissions],
the result of the proceedings would have been
different.” Strickland, 466 U.S. at 694.
“An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of
a criminal proceeding if the error had no effect on the
judgment.” Id. at 691; see also Smith v.
Robbins, 528 U.S. 259, 285-86 (2000). If a petitioner
fails to prove that he sustained prejudice, the Court need
not decide whether counsel's performance was deficient.
See United States v. Hynes, 467 F.3d 951, 970 (6th
Cir. 2006) (holding that alleged “flaws” in trial
counsel's representation did not warrant a new trial
where the claims, even if true, did not demonstrate that the
jury would have reached a different conclusion).