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Hendrick v. United States

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

March 9, 2017



          Leon Jordan 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. 62].[1] The United States responded in opposition on June 24, 2016 [Doc. 65]; Petitioner replied in turn on July 15, 2016 [Doc. 66]. For the reasons below, the petition will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         On March 4, 2012, law enforcement officers found thirteen firearms-several of which had been stolen-and nearly four hundred rounds of ammunition in a house where Petitioner was living [Presentence Investigation Report (PSR) ¶¶ 7-11]. Petitioner later pled guilty to possessing those firearms as a felon, in violation of 18 U.S.C. § 922(g)(1), which subjected him to a statutory penalty range of up to ten years' imprisonment under 18 U.S.C. 924(a)(2) [Id. ¶ 63]. In his plea agreement, Petitioner “knowingly and voluntarily waive[d] the right to file any motions or pleadings pursuant to 28 U.S.C. § 2255, ” except for “claims of ineffective assistance of counsel or prosecutorial misconduct” [Doc. 34 ¶ 10(b)].

         Based on prior Tennessee burglary and drug convictions, the United States Probation Office assigned Petitioner an enhanced base offense level under Section 2K2.1(a) of the United States Sentencing Guidelines [PSR. ¶ 22]. A four-level enhancement for possessing thirteen firearms [Id. ¶ 23], two-level enhancement for possessing stolen firearms [Id. ¶ 24], four-level enhancement for possessing the firearms in connection with a felony offense of burglary [Id. ¶ 25], and three-level reduction for acceptance of responsibility [Id. ¶¶ 31-32], resulted in a total offense level of thirty [Id. ¶ 33]. Combined with his criminal history category of III, Petitioner's total offense level yielded an advisory Guideline range of 121 to 151 months' imprisonment restricted by the ten year statutory maximum sentence allowed under § 924(a)(2) [Id. ¶ 64].

         On August 30, 2013, the Court sentenced Petitioner to 120 months' imprisonment [Doc. 57]. Petitioner did not file a direct appeal and, as a result, his judgment became final for purposes of § 2255(f)(1) on September 13, 2013. See, .e.g., Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004) (explaining that an unappealed judgment of conviction becomes final when the fourteen-day period for filing a direct appeal has elapsed). The 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 less than one year later [Doc. 62 (challenging his base offense level)].


         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).

         III. ANALYSIS

         Petitioner articulates a single ground for relief, arguing that the Johnson decision removed Tennessee burglary from Section 4B1.2's definition of “crime of violence” and that, without that conviction, he lacks sufficient predicate offenses for enhancement [Doc. 62].[2] The United States opposes the requested relief for two reasons: Petitioner waived the right to collaterally challenge his sentence in his plea agreement; and 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 [Doc. 65].

         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 decision. 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 challenging career offender enhancement based on the Johnson decision where defendant voluntarily waived his right to raise collateral challenges).

         In an attempt to avoid dismissal, Petitioner points to United States v. McBride, 826 F.3d 293 (6th Cir. 2016), in which the Sixth Circuit declined to hold that stipulating to career offender designation in a plea agreement resulted in forfeiture of the right to subsequently challenge that enhancement based on the Johnson decision [Doc. 66 p. 1]. Specifically, Petitioner argues that this Court should find that he, like Mr. McBride, “could not have intentionally relinquished a claim based on [a decision] . . . decided after his sentencing.” 826 F.3d at 295. Petitioner's reliance on the McBride decision is misplaced because, as Judge Sutton explained in In re Garner, “the defendant[] in [that case] did not sign [a] plea agreement[] with provisions waiving [his] appellate and collateral review rights.” 2016 WL 6471761, at *2.

         “The Federal Rules of Criminal Procedure give the parties ample room to tailor plea agreements to different needs-whether they are the right to appeal, the right to benefit from future changes in the law or other concerns that the defendant . . . may have.” United States v. Bradley, 400 F.3d 459, 466 (6th Cir. 2005). For purposes of the instant case, Petitioner “knowingly and voluntarily” waived his right to collaterally challenge his sentence with the exception of cases which involve claims of ineffective assistance or prosecutorial misconduct [Doc. 34 ¶ 10(b)]. The fact that “developments in the law [have] expand[ed] [Petitioner's forfeited] right [of collateral review] . . . does not suddenly make [his] plea involuntary or unknowing or otherwise undo its binding nature.” United States v. McGlivery, 403 F.3d 361, 363 (6th Cir. 2005). In light of the binding nature of Petitioner's wavier, the instant § 2255 motion will be dismissed. Accord United States v. Avery, No. 3:16-cv-2, 2016 WL 7467967, at *4-6 (S.D. Ohio Dec. 28, ...

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