United States District Court, E.D. Tennessee
GREER UNITED STATES DISTRICT JUDGE
the Court is the sole remaining ground for collateral relief
in Petitioner's supplemented motion to vacate, set aside,
or correct his sentence pursuant to 28 U.S.C. § 2255
[Docs. 470, 476, 487, 504]. In previously-entered Memorandum
Opinions, the Court denied all grounds except for
Petitioner's claim based on Johnson v. United
States, 135 S.Ct. 2551 (2015), and stayed resolution of
that final Johnson-based ground pending the Supreme
Court's decision in Beckles v. United States,
No. 15-8544, 2017 WL 855781, at *7 (U.S. March 6, 2017)
[Docs. 515, 542]. For the reasons discussed below, the stay
will be LIFTED and the supplemented petition [Docs. 470, 476,
487, 504] will be DENIED and DISMISSED WITH PREJUDICE.
August 12, 2008, a federal grand jury returned a ten-count
multi-defendant indictment charging Petitioner with one count
of conspiracy to distribute and possess with intent to
distribute Roxicodone, in violation of 21 U.S.C. §§
846 (Count One), one count of possessing a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A) (Count Four), and four counts of
using a telephone in committing or facilitating the drug
conspiracy, in violation of 21 U.S.C. § 843(b) (Counts
Five, Six, Seven, and Eight) [Doc. 3]. On November 14, 2008,
the grand jury returned a sixteen-count superseding
indictment charging Petitioner with each of the counts from
his original indictment, one additional count of using a
telephone in committing or facilitating the drug conspiracy,
in violation of 21 U.S.C. § 843(b) (Count Ten), two
counts of possessing a firearm as a felon, in violation of 18
U.S.C. § 922(g), and one count of possessing ammunition
as a felon, in violation of 18 U.S.C. § 922(g) (Counts
Fourteen, Fifteen, and Sixteen) [Doc. 65]. A second
superseding indictment returned by the grand jury did not
include any additional charges against defendant [Doc. 142].
March 6, 2009, Petitioner signed a plea agreement with the
United States in which he agreed to plead guilty to Count
One-conspiracy to distribute and possess with intention to
distribute oxycodone-in exchange for the United States
dropping Counts Four, Five, Six, Seven, Eight, Ten, Fourteen,
Fifteen, and Sixteen [Doc. 229 ¶¶ 1, 3]. A change
of plea hearing was scheduled for March 23, 2009, but counsel
filed a motion to “cancel [the] change of plea
hearing” and continue to trial on March 18, 2009 [Doc.
231]. This Court allowed Petitioner to withdraw from the plea
agreement and set a date for trial [Doc. 232].
19, 2009, a jury convicted Petitioner on Counts One, Four,
Five, Six, Seven, Eight, Ten, and Fourteen [Doc. 266]; he was
acquitted of Count Fifteen and Count Sixteen was dismissed at
request of the United States [Docs. 262, 266]. Based on prior
Florida convictions for armed burglary of a dwelling
[Id. ¶ 67], and felony battery resulting in
great bodily harm, permanent disability, or disfigurement
[Id. ¶ 70], the United States Probation Office
deemed Petitioner to be a career offender under Section 4B1.1
of the United States Sentencing Guidelines [Id.
¶ 52]. Petitioner received a total offense level of
thirty-six, criminal history category of VI, and resulting
advisory Guideline range of 444 to 525 months'
incarceration [Doc. 441]. The Court sentenced Petitioner to
444 months' imprisonment [Doc. 443].
appealed, but the Sixth Circuit affirmed his conviction,
sentence, and career offender designation. See generally
United States v. Velez, 485 F.App'x 793 (6th Cir.
2012). The Supreme Court denied Petitioner's request for
a writ of certiorari on October 29, 2012. Velez v. United
States, 133 S.Ct. 556 (2012). Less than one year
later-on July 3, 2013, Petitioner filed a § 2255 motion
articulating nine grounds for relief [Doc. 470]. He amended
the motion three times [Docs. 476, 487, 504]. This Court
dismissed all but two of Petitioner's grounds for
relief-ineffective assistance of counsel during the plea
process [Doc. 470 pp. 34- 38, 55-56], and entitlement to
relief based on the Johnson decision [Doc. 504]-in a
Memorandum Opinion entered on September 6, 2016 [Doc. 515].
The Court scheduled an evidentiary hearing on the ineffective
assistance issue [Doc. 516], and appointed counsel to provide
additional briefing related to the Johnson-based
request for relief [Doc. 522].
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).
single ground for relief remains: the Johnson
decision removed Florida burglary and Florida battery from
Section 4B1.2's definition of “crime of
violence” and that, without that conviction, Petitioner
lacks sufficient predicate offenses for enhancement [Doc. 504
pp. 1-2; Doc. 531]]. On March 6, 2016, the Supreme Court held
that the United States Sentencing Guidelines are “not
amendable to vagueness challenges.” Beckles v.
United States, No. 15-8544, 2017 WL 855781, at *7 (U.S.
March 6, 2017). As a result of the Beckles decision,
the Johnson decision does not provide a basis for
vacating, setting aside, or correcting Petitioner's
reasons discussed above, the supplemented § 2255 motion
[Docs. 470, 476, 487, 504] will be DENIED and DISMISSED WITH
PREJUDICE. The Court will CERTIFY any appeal from this action
would not be taken in good faith and would be totally
frivolous. Therefore, this Court will DENY Petitioner leave
to proceed in forma pauperis on appeal. See
Rule 24 of the Federal Rules of Appellate Procedure.
Petitioner having failed to make a substantial showing of the
denial of a ...