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.
39]. 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 a pro se request for relief on June 7, 2016,
challenging his sentence based on the Johnson
decision [Doc. 39 (arguing that his sentence was improperly
enhanced)]. FDSET did not file a supplement.
Supreme Court decided Beckles v. United States 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). Thus,
binding authority now dictates that the Johnson
decision does not undermine or adversely affect the instant
March 22, 2017, FDSET filed a motion containing two requests:
(1) to withdraw as appointed counsel under the Standing Order
in light of the Beckles decision, 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 [Doc. 50].
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
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).
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 defined in an almost
identical manner as “violent felony” under the
ACCA. See U.S. Sentencing Manual §4B1.2(a)
(adopting identical use-of-force and residual clauses and
similar enumerated-offense clause).
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)).
Petitioner submitted the Johnson-based request for
relief on June 7, 2012 [Doc. 39]. At no point during the
nine-month period leading up to the Beckles decision
did Petitioner attempt to supplement that original filing
with additional grounds for collateral relief. In light of
this unjustified delay, granting Petitioner's request for
additional time to explore alternative bases for collateral
relief would be inappropriate.
accordance with the foregoing and in light of the
Beckles decision, FDSET's request to withdraw
[Doc. 50] is GRANTED and request that the Court grant
Petitioner leave to amend and an extension of time in which
to do so [Id.] is DENIED. Petitioner's §
2255 motion [Doc. 39] 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).
IT 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