United States District Court, E.D. Tennessee
A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE.
the Court is Petitioner's motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255 [Doc.
The United States responded in opposition to relief on
September 9, 2016 [Doc. 89]. Petitioner did not reply and the
time for doing so has now passed [Doc. 92 (setting thirty day
time period for submitting a reply or supplement)]. For the
reasons below, Petitioner's § 2255 motion [Doc. 86]
will be DENIED and DISMISSED WITH
2003, Petitioner pled guilty to two counts of federal bank
robbery, in violation of 18 U.S.C. § 2133(a), and one
count of possessing a firearm as a felon, in violation of 18
U.S.C. § 922(g)(1) [Doc. 48], which subjected Petitioner
to statutory penalty ranges of up to twenty years'
imprisonment for the bank robberies and up to ten years'
imprisonment for the firearm offense [Presentence
Investigation Report (PSR) ¶ 109]. In his plea
agreement, Petitioner “agree[d] not to file any motions
or pleadings pursuant to 28 U.S.C. 2255” and
“knowingly, intentionally, and voluntarily waive[d] his
right to collaterally attack [his] plea or sentence”
except on grounds of ineffective assistance of counsel or
prosecutorial misconduct” [Doc. 48].
on prior Tennessee convictions for aggravated robbery and
attempted aggravated assault, 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 155 to 188 months'
imprisonment [PSR ¶¶ 54, 64-65, 110]. This Court
sentenced Petitioner to 176 months' imprisonment [Doc.
64]. No direct appeal was taken and Petitioner's
conviction became final for purposes of § 2255(f)(1) on
February 13, 2004, 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).
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). Less than one
year later, Petitioner submitted the instant petition
challenging his career offender enhancement based on the
Johnson decision [Doc. 86].
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 Petitioner has
knowingly and voluntarily waived the right to collaterally
challenge his sentence.
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).
petition articulates a single ground for relief, arguing that
the Johnson decision removed aggravated assault from
Section 4B1.2's definition of “crime of
violence” and that, without that conviction, Petitioner
lacks sufficient predicate offenses for enhancement [Doc.
The United States opposes the requested relief for three
reasons: Petitioner waived the right to collaterally
challenge his sentence in his plea agreement; the new
“rule” created by extension of the
Johnson decision to the Guideline context has not
been “made” retroactively applicable to cases on
collateral review; and Petitioner's conviction remains a
crime of violence independent of the now-defunct residual
clause [Doc. 89]. Because this Court agrees that Petitioner
has waived his right to litigate the instant challenge, it
declines to address retroactive application of the
Johnson decision in the Guideline context and
whether the variant of aggravated assault underlying
Petitioner's conviction remains a crime of violence
independent of the residual provision.
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 ...