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Kinnear v. United States

United States District Court, E.D. Tennessee

January 19, 2017

DION ANTWAIN KINNEAR, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          THOMAS A. VARLAN CHIEF 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 [Doc. 117].[1] The United States responded in opposition on July 29, 2016 [Doc. 121]; Petitioner replied in turn on August 18, 2016 [Doc. 124]. For the reasons below, Petitioner's § 2255 motion [Doc. 117] will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         Petitioner and co-defendant Kaylon Batts approached a woman, pointed a firearm at her, and demanded the keys to her vehicle; later that morning, Petitioner and Batts entered a bank, brandished semi-automatic handguns, and threatened the bank employees, but ultimately left without obtaining any cash [Doc. 84 ¶ 4]. Petitioner later pled guilty to attempted armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d); using, carrying, and brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c); and carjacking, in violation of 18 U.S.C. § 2119, all aided and abetted by another, in violation of 18 U.S.C. § 2 [Id. ¶ 1]. The United States agreed to dismiss a second § 924(c) charge that would have subjected Petitioner to an additional statutorily-mandated penalty of 25 years' imprisonment, and the parties stipulated to an aggregate term of eighteen years' imprisonment [Id. ¶¶ 2, 6; Presentence Investigation Report (PSR) ¶ 82]. Petitioner also “knowingly and voluntarily waive[d] the right to file any motions or pleadings pursuant to 28 U.S.C. § 2255, ” but for claims of ineffective assistance or prosecutorial misconduct [Doc. 84 ¶ 11(b)].

         Based on prior two prior Tennessee convictions-a 2009 conviction for evading arrest and 2010 conviction for possession of cocaine with intent to distribute [PSR ¶¶ 48, 53], the United States Probation Office deemed Petitioner to be a career offender under Section 4B1.1 of the United States Sentencing Guidelines with a corresponding Guideline range of 188 to 235 months' imprisonment [Id. ¶¶ 36, 81]. On February 13, 2015, this Court sentenced Petitioner to an aggregate term of 216 months' imprisonment consistent with Petitioner's Rule 11(c)(1)(C) plea agreement [Doc. 101]. No direct appeal was taken and Petitioner's conviction became final for purposes of § 2255(f)(1) on February 27, 2015, 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).

         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 June 17, 2016 [Doc. 117 (challenging his career offender enhancement)].

         II. TIMELINESS OF PETITIONER'S CLAIMS

         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 Petitioner has knowingly and voluntarily waived the right to collaterally challenge his sentence.

         III. 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).

         IV. ANALYSIS

         Petitioner articulates a single ground for relief, arguing that the Johnson decision removed felony evading arrest from Section 4B1.2's definition of “crime of violence” and that, without that conviction, he lacks sufficient predicate offenses for career offender enhancement [Doc. 117].[2] The United States opposes the requested relief for two reasons: (1) Petitioner waived the right to collaterally challenge his sentence in his Rule 11(c)(1)(C) plea agreement; and (2) the new “rule” created by extension of the Johnson decision to the Guideline context has not been “made” retroactively application to cases on collateral review [Doc. 121]. Because this Court agrees that Petitioner has waived his right to litigate the instant collateral challenge, it declines to reach the second issue-retroactive application of the Johnson decision in the Guideline context.

         A. Waiver

         It is well established that an informed and voluntary waiver of the right to collaterally attack a conviction and sentence is enforceable. Watson v. United States, 165 F.3d 486, 489 (6th Cir. 1999); United States v. McGlivery, 403 F.3d 361, 363 (6th Cir. 2005). The Sixth Circuit recently held that the same is true even where that waiver prevents a petitioner from challenging his base offense level or career offender enhancement based on the Johnson and Pawlak decisions. See In re Garner, No. 16-1655, 2016 WL 6471761, at *1-2 (6th Cir. Nov. 2, 2016) (denying leave to file a successive petition ...


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