United States District Court, E.D. Tennessee
JEFFERSON L. BIVINGS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
A. VARLAN CHIEF 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. 437]. The United States responded in opposition on
May 24, 2016 [Doc. 443]. Petitioner did not reply and the
time for doing so has now passed. E.D. Tenn. L.R. 7.1, 7.2.
Also before the Court is a pro se motion to “seal [the]
case” [Doc. 446]. For the reasons below,
Petitioner's motion to seal will be DENIED and §
2255 motion will be DENIED and DISMISSED WITH PREJUDICE.
2008, Petitioner pled guilty to conspiring to distribute at
least five kilograms of cocaine and at least one hundred
kilograms of marijuana, in violation of 21 U.S.C.
§§ 846 and 841(a)(1), (b)(1)(A) [Docs. 189, 253].
He faced a statutory mandatory minimum penalty of life
imprisonment as the result of a prior federal conviction for
conspiring to possess cocaine with intent to distribute and
two prior Georgia convictions for possessing cocaine with
intent to distribute [Docs. 127, 189; Presentence
Investigation Report (PSR) ¶ 60]. Based on those same
offenses, the United States Probation Office deemed
Petitioner to be a career offender under Section 4B1.1 of the
United States Sentencing Guidelines [PSR ¶¶ 27, 33,
37, 39]. After granting the United States' motion for
downward departure under 18 U.S.C. § 3553(e), this Court
sentenced Petitioner to 200 months' imprisonment on May
29, 2009 [Doc. 370].
direct appeal was taken and, as a result, Petitioner's
conviction became final for purposes of § 2255(f)(1) on
June 12, 2009, at expiration of time to file the same.
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); Fed. R. App. P.
4(b)(1)(A)(i) (“In a criminal case, a defendant's
notice of appeal must be filed in the district court within
[fourteen]-days after . . . the entry of . . .
judgment.”). The United States Supreme Court decided
Johnson v. United States-invalidating the residual
clause of the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e)-on June 26, 2015. 135 S.Ct. 2551
(2015). Petitioner filed the instant petition for collateral
relief less than one year later on April 14, 2016 [Doc. 437
(challenging his career offender enhancement in light of the
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 the Johnson
decision has no impact on Petitioner's case.
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).
articulates a single ground for relief, arguing that the
Johnson decision removed his drug offenses from
Section 4B1.2's definition of “crime of
violence” and, as a result, that he lacks sufficient
predicate offenses for career offender enhancement [Doc.
ACCA mandates a fifteen-year sentence for any felon who
unlawfully possesses a firearm after having sustained three
prior convictions “for a violent felony or a serious
drug offense, or both, committed on occasions different from
one another.” 18 U.S.C. § 924(e)(1). The statute
defines “violent felony” as “any crime
punishable by imprisonment for a term exceeding one
year” that (1) “has as an element the use,
attempted use, or threatened use of physical force against
the person of another” (the
“use-of-physical-force clause”); (2) “is
burglary, arson, or extortion, involves the use of
explosives” (the “enumerated-offense
clause”); or (3) “otherwise involves conduct that
presents a serious potential risk of physical injury to
another” (the “residual clause”). 18 U.S.C.
§ 924(e)(2)(B). It was this third clause-the residual
clause-that the Supreme Court deemed unconstitutional in
Johnson. 135 S.Ct. at 2563. The Court went on to
make clear, however, that its decision did “not call
into question . . . the remainder of the [ACCA's]
definition of violent felony, ” i.e., the
use-of-physical-force and enumerated-offense clauses.
Id. Nor did Johnson disturb the use of
prior serious drug offenses.
4B1.1 classifies a defendant as a career offender if (1) he
or she was at least eighteen years old at the time the
defendant committed the instant offense; (2) the instant
offense of conviction is a felony that is either a crime of
violence or a controlled substance offense; and (3) he or she
has at least two prior felony convictions of either a crime
of violence or a controlled substance offense. U.S.
Sentencing Manual § 4B1.1(a). Only Petitioner's
satisfaction of the third prong-possession of two qualifying
predicate convictions-is disputed [Docs. 437].
substance offense” is defined as any offense
“punishable by imprisonment for a term exceeding one
year, that prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance . . .
or the possession of controlled substance . . . with intent
to manufacture, import, export, distribute, or
dispense.” U.S. Sentencing Manual § 4B1.2(b).
“Crime of violence” is defined in an almost
identical manner as “violent felony” under the
ACCA. See ...