United States District Court, E.D. Tennessee
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE
the Court is Petitioner's supplemented motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255 [Docs. 33, 36]. In it, he challenges his career
offender designation and sentence in light of the Supreme
Court's decisions in Johnson v. United States,
135 S.Ct. 2551 (2015), Mathis v. United States, 136
S.Ct. 2243 (2016), Welch v. United States, 136 S.Ct.
1257 (2016), and Beckles v. United States, No.
15-8544, 2017 WL 855781, at *7 (U.S. March 6, 2017)
[Id.; Doc. 34 (memorandum in support of original
petition)]. The United States responded in opposition on
March 15, 2017 [Doc. 38]. For the reasons below,
Petitioner's supplemented § 2255 motion will be
DENIED and DISMISSED WITH PREJUDICE.
January 26, 2016, Petitioner pled guilty to Count Two of a
three-count Indictment, charging him with possession with
intent to distribute cocaine in violation of 21 U.S.C. §
841(a)(1), (b)(1)(C) [Doc. 15 ¶ 1]. In the plea
agreement, the parties agreed that a term of 120 months'
imprisonment would be appropriate for the offenses
[Id. ¶ 6], and Petitioner knowingly and
voluntarily waived 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
[Id. ¶ 10(b)].
on prior drug convictions, the United States Probation Office
deemed Petitioner to be a career offender under Section 4B1.1
of the United States Sentencing Guidelines with an advisory
Guideline range of 151 to 188 months' imprisonment
[Presentence Investigation Report (PSR) ¶¶ 22, 82].
Consistent with the plea agreement, this Court sentenced
Petitioner to a term of 120 months' imprisonment on May
3, 2016 [Doc. 29]. Petitioner did not file a direct appeal.
January 9, 2017, Petitioner filed the instant § 2255
petition challenging his career offender designation and
sentence in light of the Johnson, Mathis,
Welch, and Beckles decisions [Docs. 33,
34]. On February 8, 2017, he filed an amendment with
additional analysis [Doc. 36].
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).
supplemented petition articulates a single ground for relief,
arguing that the cited Supreme Court decisions preclude
categorization of his prior drug offenses as “serious
drug offenses” for purposes of career offender
enhancement and that, without those convictions, he is
entitled to vacatur of his sentence [Docs. 33, 34,
The United States opposes relief in part because Petitioner
waived the right to collaterally challenge his sentence in
his plea [Doc. 38].
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).
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.
15 ¶ 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, 2016)
(denying Johnson-based challenge based on
pre-Johnson waiver); United States v.
Strauss, No. 16-cv-11397, 2016 WL 68733398, at *2-3
(E.D. Mich. Nov. 2, 2016) (same); United States v.
Muller, No. 16-cv-20009, 2016 WL 6892268, at *2-3 (E.D.
Mich. Nov. 2, 2016) (same).
Merits of Johnson-Based ...