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Neal v. United States

United States District Court, E.D. Tennessee, Knoxville

January 17, 2017

MICHAEL NEAL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          THOMAS W. PHILLIPS, SENIOR UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Docs. 190, 193].[1] He bases his request for relief on Johnson v. United States, 135 S.Ct. 2551 (2015), in which the Supreme Court held that the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), was unconstitutionally vague [Id.]. On July 25, 2016, the United States filed a request that this Court stay resolution of Petitioner's claim pending the Supreme Court's decision in Beckles v. United States, No. 15-8544, 2016 WL 1029080 (June 27, 2016) [Doc. 198 (suggesting Petitioner's entitlement to relief depends on whether or not the Johnson decision's application in the Guideline context has been made “retroactively applicable” on collateral review)]; Petitioner responded in opposition to a stay of proceedings on July 26, 2016 [Doc. 202]. For the reasons that follow, the United States's request for a stay [Doc. 198] will be DENIED and Petitioner's § 2255 motion [Docs. 190, 193] will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In 2012, Petitioner pled guilty to, and was subsequently convicted of, conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846, 841(a)(1), (b)(1)(A); and possessing a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c) [Docs. 108, 116]. Based on two prior convictions-one Illinois conviction for aggravated discharge of a firearm and another conviction for possession of cocaine with intent to distribute, the United States Probation Office deemed Petitioner to be a career offender under Section 4B1.1 of the United States Sentencing Guidelines [Presentence Investigation Report (PSR) ¶¶ 40, 48, 50]. As a result of the enhancement, Petitioner received an effective Guideline range of 322 to 387 months-consisting of a range of 262 to 327 months for the drug offense followed by a mandatory consecutive 60-month sentence for the § 924(c) offense [Id. ¶ 83]. On June 14, 2013, this Court sentenced Petitioner to an aggregate term of 322 months' incarceration [Doc. 160]. No direct appeal was taken and Petitioner's conviction became final for purposes of § 2255(f)(1) on June 28, 2013, at expiration of time to file an appeal. See Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004) (an unappealed judgment of conviction becomes final when the fourteen-day period for filing a direct appeal has elapsed).

         Slightly less than three years later-on June 2, 2016-Petitioner filed the instant petition challenging his sentence in light of the Johnson decision [Docs. 190, 193].

         II. REQUEST FOR STAY

         In addition to Petitioner's request for collateral relief, this Court is in possession of the United States's motion to stay proceedings pending the Supreme Court's decision next term in Beckles [Doc. 198]. As support, the United States notes that the decision is expected to address a key issue-retroactive application of the Johnson decision in the Guideline context [Id.].

         “The question whether to stay a case pending a potentially dispositive decision in an appellate court is a pre-trial matter committed to the sound discretion of the [court].” United States v. Johnson, No. 3:11-CR-48, 2016 WL 4035187, at *1 (S.D. Ohio July 28, 2016). Because Petitioner has failed to demonstrate that retroactive application of the Johnson decision to the instant case would render his sentence unlawful, the Court finds the requested stay unnecessary.

         III. TIMELINESS OF PETITION

         Section 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 the Johnson decision has no impact on Petitioner's case.

         IV. STANDARD OF REVIEW

         The 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).

         V. ANALYSIS

         Petitioner articulates as single ground for collateral relief: arguing that his prior Illinois conviction for aggravated discharge of a firearm no longer qualifies as a crime of violence after the Johnson decision and that, ...


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