United States District Court, E.D. Tennessee, Greeneville
RONNIE GREER UNITED STATES DISTRICT JUDGE
the Court is Petitioner's pro se motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255 [Doc. 103]. He bases the request for relief on
Johnson v. United States, 135 S.Ct. 2551 (2015), in
which the Supreme Court held that the residual clause of the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), was unconstitutionally vague [Id.].
The United States filed a response in opposition on July 22,
2016 [Doc. 105]. Petitioner did not reply and the time for
doing so has now passed. E.D. Tenn. L.R. 7.1, 7.2. Also
before the Court is Petitioner's request for an extension
of time to supplement his Johnson-based arguments
for collateral relief [Doc. 110]. For the reasons that
follow, the requested extension will be DENIED and
Petitioner's § 2255 motion will be DENIED and
DISMISSED WITH PREJUDICE.
2007, Petitioner pled guilty, and was later convicted of,
conspiring to distribute and possess with intent to
distribute at least five kilograms of cocaine, in violation
of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) [E.D.
Tenn. Case No. 2:05-cr-92, Doc. 65], and money laundering, in
violation of 18 U.S.C. § 1956(a)(1)(B)(i) [E.D. Tenn.
Case No. 2:06-cr-83, Doc. 19]. Based on stipulations in
Petitioner's plea agreement, the United States Probation
Office deemed him responsible for 15 kilograms of cocaine
hydrochloride and assigned Petitioner a base offense level of
thirty-four [Presentence Investigation Report (PSR)
¶¶ 11, 20]. A two-level enhancement for possessing
a firearm, two-level enhancement for money laundering, and
three-level reduction for acceptance of responsibility,
yielded a total offense level of thirty-five [Id.
¶¶ 21, 26, 27, 32, 34, 37]. Combined with his
criminal history category of IV, Petitioner's total
offense level resulted in an advisory Guideline range to 235
to 293 months' imprisonment [Id. ¶¶
50, 62, 63]. The Court granted a Section 5K1.1 motion filed
by the United States and sentenced Petitioner to 180
months' imprisonment on November 9, 2007 [E.D. Tenn. Case
No. 2:05-cr-92, Docs. 59, 61, 65; E.D. Tenn. Case No.
2:06-cr-83, Docs. 15, 19]. Petitioner did not file a direct
filed a motion for reduction of sentence under 18 U.S.C.
§ 3582(c)(2) and Guidelines Amendment 782 on December
28, 2015, but the Court denied that request [E.D. Tenn. Case
No. 2:05-cr-92, Docs. 94, 96, 101; E.D. Tenn. Case No.
2:06-cr-83, Docs. 36, 41]. In doing so, the Court emphasized
the seriousness of Petitioner's offense conduct:
obtaining multiple-kilogram shipments of cocaine from other
states for redistribution in eastern Tennessee for more than
two years; entering the United States illegally during the
conspiracy; possessing firearms during the conspiracy; and
committing a money-laundering offense in an effort to conceal
illegal drug trafficking profits [E.D. Tenn. Case No.
2:05-cr-92, Doc. 101 p. 4; E.D. Tenn. Case No. 2:06-cr-83,
Doc. 41 p. 4]. The Court also noted that Petitioner's
“history of disciplinary infractions” after being
sentenced signaled a “high risk of recidivism and
disregard for prison regulations” [Id.].
little over one year later-on June 20, 2016, Petitioner filed
the instant motion requesting sentencing relief in light of
the Johnson decision [Doc. 103]. After advising
Petitioner about the consequences inherent with its decision
to do so and affording him an opportunity to object, the
Court construed the request as a motion for collateral relief
under § 2255.
REQUEST FOR A STAY OR EXTENSION OF TIME
March 14, 2017, this Court notified Petitioner of its intent
to recharacterize his pro se motion for a reduction in
sentence as a motion to vacate, set aside, or correct
sentence under § 2255 and afforded Petitioner “ten
(10) days from the date of [its] Order to either notify the
Court of his objection to the recharacterization or amend
[the] motion” [Doc. 109]. Thirteen days later-on March
27, 2017, Petitioner filed a pro se motion (1) affirming that
he intended the filing to be treated as a § 2255
petition for relief based on the Johnson decision,
(2) requesting that the Court either stay the proceeding or
grant him an extension of time to supplement the petition
with additional arguments, and (3) asking for copies of
several documents to aid in the preparation of those
additional grounds for relief [Doc. 110 (explaining that
Petitioner desires to “take the opportunity to file a
§ 2255 motion” but requesting additional time to
“develop his claim”)].
request will be denied for the following reasons. First, the
Court afforded Petitioner an opportunity to object to the
treatment of his pro se filing as a 2255 petition and he did
not. To the extent that Petitioner might point to the
statement that he would be “prejudice[d]” if not
allowed “to file a [supplement], ” that is not
the same as an objection to the recharacterization or an
unambiguous statement that Petitioner did not intend for the
pro se filing to be treated as a § 2255 petition.
Second, Petitioner submitted the underlying pro se motion on
June 20, 2016, meaning he had nine months to either expound
on the arguments for Johnson-based relief or
supplement the petition with additional theories. Third and
finally, Petitioner had notice of this Court's intent to
treat the filing as a § 2255 petition well before the
March 14, 2017 Order to that effect. Not only was his motion
filed as a § 2255 petition by the Clerk's Office
[Doc. 103], but the United States responded to the motion in
accordance with that § 2255 designation on July 22, 2016
PETITION FOR COLLATERAL RELIEF
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).
extent that Petitioner argues that he no longer possesses the
predicate offenses for categorization as an armed career
criminal under the ACCA, career-offender under Section 4B1.1
of the United States Sentencing Guidelines, or an enhanced
base offense level under Section 2K2.1(a) of the ...