United States District Court, E.D. Tennessee, Knoxville
GEORGE W. BUFORD, Petitioner,
UNITED STATES OF AMERICA, Respondent.
L. COLLIER UNITED STATES DISTRICT JUDGE
the Court is Petitioner's supplemented motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255 [Docs. 160, 161, 166, 168, 176]. He bases his
request for collateral 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 responded in opposition on August 1, 2016 [Doc. 169];
Petitioner replied in turn on August 29, 2016 [Doc. 174].
Also before the Court are Petitioner's pro se motions for
a writ “ad prosequendum” [Doc. 167], to correct
the Presentence Investigation Report (PSR) [Docs. 172, 173],
and for a status update [Doc. 177]. For the reasons below,
Petitioner's motions to correct the PSR [Docs. 172, 173]
will be DENIED and his supplemented § 2255 motion [Docs.
160, 161, 166, 168, 176] will be DENIED and DISMISSED WITH
PREJUDICE. Petitioner's requests for a writ “ad
prosequendum” and status update [Docs. 167, 177] will
be DENIED as moot.
1998, Petitioner robbed six convenience stores and fast food
restaurants in Knoxville, Tennessee. United States v.
Buford, 106 F. App'x 400, 401 (6th Cir. 2004). In
2002, a jury convicted Petitioner of six counts of Hobbs Act
robbery, in violation of 18 U.S.C. § 1951, four counts
of using and carrying a firearm in relation to those
robberies, in violation of 18 U.S.C. § 924(c), and one
count of possessing a firearm as a felon, in violation of 18
U.S.C. § 922(g). Id.
the indictment and superseding indictment charged Petitioner
with possessing a firearm as a felon, in violation of both 18
U.S.C. §§ 922(g) and § 924(e), he was never
classified as an armed career criminal under § 924(e) or
sentenced accordingly [PSR ¶ 119 (describing the maximum
term of imprisonment for that count as ten years'
imprisonment, rather than the fifteen-year mandatory minimum
that would have applied had Petitioner been an armed career
criminal)]. Instead, when calculating the applicable
Guidelines range, the United States Probation Office deemed
Petitioner to be a career offender under Section 4B1.1 of the
United States Sentencing Guidelines [Id. ¶ 82]
based on prior convictions for kidnapping and aggravated
sexual battery [Id. ¶ 88] and aggravated
assault [Id. ¶ 89]. The corresponding Guideline
range was 210 to 262 months' imprisonment, to be followed
by the statutorily mandated consecutive terms for each §
924(c) conviction-84 months for the first offense and 300
months for each subsequent offense [Id. ¶¶
119, 120]. Consistent with the foregoing, this Court
sentenced Petitioner to an aggregate term of 1, 194
months' imprisonment-concurrent 210-month terms for the
robberies and a concurrent 120-month term for the §
922(g) offense, followed by the statutorily-mandated
consecutive minimum terms for his four § 924(c)
offenses. Buford, 106 F. App'x at 401.
Petitioner appealed, and the Court of Appeals for the Sixth
Circuit affirmed his conviction and sentence in 2004.
filed an initial motion to vacate, set aside, or correct his
sentence in 2005 [Doc. 89]. This Court denied that petition
in a Memorandum Opinion and Judgment Order entered on
November 21, 2006 [Docs. 94, 95]. Beginning in April of 2007,
Petitioner started filing a series of pro se collateral
challenges, each of which this Court transferred to the Sixth
Circuit as an unauthorized successive § 2255 motion and
all of which the Sixth Circuit denied [Docs. 98, 105, 107,
117, 120, 123, 132, 133, 136, 146, 150, 156]. Petitioner also
unsuccessfully sought relief under 18 U.S.C. § 2241.
Buford v. Warden, Lewisburg USP, 588 F. App'x 89
(3rd Cir. 2014).
20, 2016, Petitioner submitted the instant motion seeking
collateral relief from his career offender designation and
§ 924(c) convictions based on the Johnson
decision [Doc. 160]. Appointed counsel filed a supplement in
support of Petitioner's career offender challenge [Doc.
161]. The Sixth Circuit granted leave to consider the
successive filing on July 1, 2016 [Doc. 164].
MOTIONS TO CORRECT THE CONTENT OF PETITIONER'S
addition to the petition, this Court is in possession of
Petitioner's motion and amended motion to
“correct” the information contained in his PSR
[Docs. 172, 173]. In those motions, Petitioner claims he is
actually innocent of the sexual battery offense listed in his
PSR and argues the Court erred when it relied on that offense
for career offender enhancement.
court[s] [are] allowed to accept as true all factual
allegations in a [PSR] to which the defendant does not
object.” United States v. Bondurant, 146 F.
App'x 762, 763 (6th Cir. 2005). The proper time for
making such an objection is at the original sentencing
hearing, and failure to make the objection at that time
waives future objections. United States v. Levy, 250
F.3d 1015, 1018 (6th Cir. 2001). Because Petitioner did not
object to this Court's inclusion of the kidnapping and
sexual battery offense in his PSR at the original sentencing
hearing, he cannot do so now.
PETITION FOR COLLATERAL RELIEF
Standard of Review
obtain relief under 28 U.S.C. § 2255, 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).