United States District Court, E.D. Tennessee, Winchester
JOHN M. REDMOND, JR., Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
S. MATTICE, JR. 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. 60]. 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).
Petitioner filed the instant pro se challenge to his career
offender enhancement under Section 4B1.1 of the United States
Sentencing Guidelines [Doc. 60 (suggesting that the sentence
is no longer valid because the residual provision in Section
4B1.2 is equally vague)]. FDSET did not file a supplement. Also
before the Court are motions for an extension of time [Doc.
63] and to appoint counsel [Doc. 64].
accordance with the Sixth Circuit's instruction [Doc.
59], this Court stayed the action pending resolution of
several dispositive legal issues in Beckles v. United
States [Doc. 61]. 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.
light of the Beckles decision, this Court directed
FDSET, the United States, and Petitioner that any motion they
wanted considered prior to resolution of or in conjunction
with Petitioner's § 2255 motion should be filed
prior to April 1, 2017 [Doc. 62]. On March 27, 2017, FDSET
filed a motion requesting the Court grant Petitioner an
extension of time to file a pro se response [Doc. 63].
Petitioner submitted a pro se request for new counsel the
same day [Doc. 64].
former motion-FDSET's request for an extension of time so
that Petitioner can file a pro se response [Doc. 63], will be
denied because Petitioner's pro se request for counsel-
which maintains that he is entitled to Johnson-based
collateral relief from his career offender
designation-demonstrates that the Court afforded the parties
ample time to submit motions for consideration. The latter
motion-Petitioner's pro se request for the appointment of
counsel [Doc. 64], will be denied as moot because this Court
previously appointed FDSET to look into whether Petitioner
has a claim under the Johnson decision and assist
with litigation of a meritorious claim. FDSET's refusal
to supplement the pro se filing because the Beckles
decision forecloses the possibility of Johnson-based
relief neither necessitates nor justifies provision of
accordance with the foregoing and in light of the
Beckles decision, FDSET's request that the Court
grant Petitioner an extension of time to file a pro se
response to its scheduling order and Petitioner's pro se
request for substitute counsel [Docs. 63, 64] are DENIED.
This Court's stay of the instant action will be LIFTED
and Petitioner's pro se § 2255 motion [Doc. 60] 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).
 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.
Section 4B1.1 enhances a defendant's offense level
if he or she qualifies as a “career offender, ”
i.e., adult defendant whose offense of conviction is a
“crime of violence or controlled substance
offense” and who has “at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.” U.S. Sentencing Manual §
4B1.1(a). “Crime of violence” under the
Guidelines is defined in an almost identical manner as
“violent felony” under the ACCA. See
U.S. Sentencing ...