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McKissick v. United States

United States District Court, E.D. Tennessee

March 29, 2017

EDWARD MCKISSICK, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          HARRY S. MATTICE, JR. UNITED STATES DISTRICT JUDGE

         Before 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.

         I. BACKGROUND

         On 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)].

         Based 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.

         On 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].

         II. STANDARD OF REVIEW

         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

         The 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, 36].[1] The United States opposes relief in part because Petitioner waived the right to collaterally challenge his sentence in his plea [Doc. 38].

         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).

         “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. 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).[2]

         B. Merits of Johnson-Based ...


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