United States District Court, E.D. Tennessee, Greeneville
Jordan 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 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.
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)].
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. ¶
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)].
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 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.
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].
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).
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.
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, ...