United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM AND ORDER
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.
25]. On February 11, 2016, this Court appointed Federal
Defender Services of Eastern Tennessee (“FDSET”)
to review the case to determine whether Petitioner is
eligible for collateral relief based on Johnson v. United
States, 135 S.Ct. 2551 (2015), which invalidated the
residual provision of the Armed Career Criminal Act, 18
U.S.C. § 924(e), for unconstitutional vagueness.
See E.D. Tenn. SO-16-02 (Feb. 11, 2016). Consistent
with that appointment, FDSET filed the instant petition
challenging the propriety of Petitioner's base offense
level under Section 2K2.1(a) of the United States Sentencing
Guidelines in light of the Johnson decision [Doc. 35
(suggesting that Petitioner's sentence is no longer valid
because the residual provision in Section 4B1.2 is equally
September 7, 2016, this Court stayed the action pending
resolution of several dispositive legal issues in Beckles
v. United States [Doc. 32]. The Supreme Court decided
the Beckles case on March 6, 2016, holding that the
United States Sentencing Guidelines are “not amenable
to vagueness challenges.” Beckles v. United
States, No. 15-8544, 2017 WL 855781, at *7 (U.S. March
6, 2017). As a result, binding authority now dictates that
the Johnson decision does not provide a basis for
vacating or correcting Petitioner's sentence.
March 21, 2017, FDSET filed a motion containing two requests:
(1) to withdraw as appointed counsel under the Standing Order
in light of the Beckles decision [Doc. 35 p. 1
(explaining that “she ethically cannot further pursue a
motion to vacate . . . under [the] Johnson
[decision] according to the limited appointment authorization
provided by the Standing Order”)], and (2) that the
Court grant Petitioner leave and a 30-day extension of time
to file a pro se amendment to the existing-petition with
yet-to-be-identified grounds for collateral relief
[Id. at 2].
the Beckles decision forecloses any possibility of
Johnson-based relief, FDSET's request to
withdraw will be granted and counsel will be relieved of her
duties under the Standing Order. FDSET's request for
leave to amend and an extension of time to do so will be
it is true that Rule 15(a) of the Federal Rules of Civil
Procedure provides that leave to amend should “be
freely given when justice so requires, ” Fed.R.Civ.P.
15(a), relevant factors include “undue delay in filing,
lack of notice to the opposing party, bad faith by the moving
party, repeated failure to cure deficiencies by previous
amendments, undue prejudice to the opposing party, and
futility of amendment.” Anderson v. Young
Touchstone Co., 735 F.Supp.2d 831, 833 (W.D. Tenn. 2010)
(quoting Forman v. Davis, 371 U.S. 178, 182 (1965)).
FDSET filed the petition on June 21, 2016 [Doc. 25]. At no
point during the nine-month period leading up to the
Beckles decision did Petitioner attempt to
supplement FDSET's filing with additional grounds for
collateral relief. In light of this unjustified delay, an
extension of time would be inappropriate.
accordance with the foregoing and in light of the
Beckles decision, FDSET's request to withdraw
[Doc. 35 p. 1] is GRANTED and request that the Court grant
Petitioner leave to amend and an extension of time in which
to do so [Id. at 2] is DENIED. This Court's stay
of the instant action will be LIFTED and Petitioner's
§ 2255 motion [Doc. 25] 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
Fed. R. App. P. 24. Petitioner having failed to make a
substantial showing of the denial of a constitutional right,
a certificate of appealability SHALL NOT
ISSUE. 28 U.S.C. § 2253; Fed. R. App. P. 22(b).
IS SO ORDERED.
 The ACCA mandates a fifteen-year
sentence for any felon who unlawfully possesses a firearm
after having sustained three prior convictions “for a
violent felony or a serious drug offense, or both, committed
on occasions different from one another.” 18 U.S.C.
§ 924(e)(1). The statute defines “violent
felony” as “any crime punishable by imprisonment
for a term exceeding one year” that (1) “has as
an element the use, attempted use, or threatened use of
physical force against the person of another” (the
“use-of-physical-force clause”); (2) “is
burglary, arson, or extortion, involves the use of
explosives” (the “enumerated-offense
clause”); or (3) “otherwise involves conduct that
presents a serious potential risk of physical injury to
another” (the “residual clause”). 18 U.S.C.
§ 924(e)(2)(B). It was this third clause-the residual
clause-that the Supreme Court deemed unconstitutional in the
Johnson decision. 135 S.Ct. at 2563.
The Guidelines set a general base offense level of
fourteen for violating 18 U.S.C. § 922(g). U.S.
Sentencing Manual § 2K2.1(a)(6). For offenders with one
prior conviction for either a “crime of violence”
or “controlled substance offense, ” the base
offense level increases to twenty. U.S. Sentencing Manual
§ 2K2.1(a)(4). Offenders with two such convictions face
a base offense level of twenty-four. U.S. Sentencing Manual
§ 2K2.1(a)(2). “Controlled substance
offense” is defined as any offense “punishable by
imprisonment for a term exceeding one year, that prohibits
the manufacture, import, export, distribution, or dispensing
of a controlled substance . . . or the possession of
controlled substance . . . with intent to manufacture,
import, export, distribute, or dispense.” U.S.
Sentencing Manual § 4B1.2(b). “Crime of
violence” is ...