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Patterson v. United States

United States District Court, E.D. Tennessee, Chattanooga

April 11, 2017

RANDY PATTERSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          CURTIS L. COLLIER, UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner's supplemented motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Docs. 51, 63].[1] He bases the request for relief at least in part 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 to the original pro se petition on March 23, 2016 [Doc. 60], and requested that this Court stay resolution of the supplemented petition pending Beckles v. United States, 137 S.Ct. 886 (2017), on July 25, 2016 [Doc. 63]-a request that this Court granted [Doc. 66]. Also before the Court are two pro se requests to proceed in forma pauperis [Docs. 52, 55], and one pro se request for a copy of Petitioner's “sentencing transcript” [Doc. 54]. For the reasons that follow, Petitioner's requests to proceed in forma pauperis and for a copy of the sentencing transcripts will be DENIED as moot. The supplemented § 2255 motion will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In 2003, Petitioner pled guilty, and was subsequently convicted of, conspiring to distribute at least 500 grams of a methamphetamine mixture, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) [Doc. 30]. Based on a prior Georgia burglary conviction and a prior Georgia drug conviction, the United States Probation Office deemed Petitioner to be a career offender under Section 4B1.1 of the United States Sentencing Guidelines [Presentence Investigation Report (PSR) ¶¶ 26, 31, 33]. In accordance with that designation, this Court sentenced Petitioner to 262 months' imprisonment [Doc. 30]. Petitioner appealed, and the Sixth Circuit affirmed his conviction and sentence [Id.]. The Supreme Court granted Petitioner's request for a writ of certiorari, remanding the case for resentencing in light of United States v. Booker, 543 U.S. 220 (2005) [Docs. 36, 37]. Upon remand, this Court reimposed the same 262-month term of incarceration [Doc. 42]. Again, Petitioner appealed and, again, the Sixth Circuit affirmed his conviction and sentence [Doc. 47]. The Supreme Court denied a second request for a writ of certiorari on October 1, 2007 [Doc. 50].

         On October 1, 2014, Petitioner filed his original petition for collateral relief [Doc. 51]. On June 24, 2016, FDSET filed a supplement seeking relief based on the Johnson decision [Doc. 63].

         The supplemented § 2255 petition contains three grounds for collateral relief.[2] First, Petitioner argues this Court erred when it categorized his prior Georgia drug conviction as a “controlled substance offense” under Section 4B1.2 and claims the Court committed a miscarriage of justice when it applied the career offender enhancement based on that erroneous categorization [Doc. 51 pp. 4-6]. Second, he suggests he received ineffective assistance of counsel because counsel failed to object to, or advise Petitioner about the likelihood of, the career offender designation [Id. at 7]. Third, he argues the Johnson decision removed Georgia burglary from Section 4B1.2(a)'s definition of “crime of violence” and that, without that conviction, he lacks sufficient predicates for career offender enhancement [Doc. 63].

         II. REQUESTS TO PROCEED IN FORMA PAUPERIS

         The Court is in possession of Petitioner's pro se requests for leave to proceed in forma pauperis [Doc. 52, 55]. No such authorization or leave is required and thus the motions are moot.

         III. PETITION FOR COLLATERAL RELIEF

         A. Timeliness of Supplemented Petition

         Section 2255(f) places a one-year statute of limitations on all petitions for collateral relief under § 2255 running from either: (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f). This same provision governs the timeliness of later-filed amendments. Cameron v. United States, No. 1:05-cv-264, 2012 WL 1150490, at *3-6 (E.D. Tenn. April 5, 2012) (citing Olsen v. United States, 27 F. App'x 566 (6th Cir. Dec. 14, 2001)). Petitioner has failed to demonstrate that subsections (f)(2) or (f)(4) apply to his case. i.e., he has not established that any illegal action by the government prevented him from making the timely petition or the existence of facts affecting his case that could not have previously been discovered through the exercise of due diligence. As such, timeliness of Petitioner's supplemented § 2255 motion depends on whether or not its submission complied with subsections (f)(1) and (f)(3).

         1. Subsections (f)(1) and (f)(3)

         For purposes of subsection (f)(1)-under which the statutory period expires one year from the date on which the judgment of conviction becomes final-a “conviction becomes final at the conclusion of direct review.” Brown v. United States, 20 F. App'x 373, 374 (6th Cir. 2001) (quoting Johnson v. United States, 246 F.3d 655, 657 (6th Cir. 2001)). Where a defendant pursues direct review through to a petition for certiorari in the United States Supreme Court, direct review concludes when the Supreme Court either denies the petition for certiorari or decides the case. Clay v. United States, 537 U.S. 522, 532 (2003). The Supreme Court denied Petitioner's second request for a writ of certiorari on October 1, 2007, and the statute of limitations began to run on that date. The window for requesting relief under subsection (f)(1) expired on October 1, 2008, six years before Petitioner filed the original pro se petition [Doc. 51], and nearly eight years before FDSET submitted the Johnson-based supplement [Doc. 63].

         To the extent Petitioner attempts to rely on subsection (f)(3)'s independent one-year filing period for newly-recognized rights made retroactively applicable on collateral review as justification for submitting the petition after June 28, 2013, only the claim for collateral relief based on the Johnson decision even arguably satisfies the conditions required to trigger that provision. See 28 U.S.C. § 2255(f)(3) (requiring reliance on a newly recognized and retroactively applicable right); see also Welch v. United States, 136 S.Ct. 1257, 1265 (2016) (“Johnson is . . . a substantive decision and so has retroactive effect . . . in cases on collateral review.”); In re Windy Watkins, 810 F.3d 375, 380-81 (6th Cir. 2015) (finding Johnson constitutes a new substantive rule of constitutional law made retroactively applicable on collateral review and thus triggers ยง 2255(h)(2)'s requirement for certification of a second or successive petition). By contrast, Petitioner's other theories of ...


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