United States District Court, E.D. Tennessee, Chattanooga
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE
the Court is the United States' motion to deny and
dismiss Petitioner's supplemented motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255 [Doc. 98]. Petitioner submitted the relevant § 2255
petition on November 5, 2015 [Docs. 75, 77,
In it, he challenges his enhancement under Section 4B1.1 of
the United States Sentencing Guidelines and convictions under
18 U.S.C. § 924(c) based on Johnson v. United
States, 135 S.Ct. 2551 (2015), which held that the
residual provision of the Armed Career Criminal Act, 18
U.S.C. § 924(e), was unconstitutionally vague
[Id. (suggesting that his sentence and convictions
are no longer valid because the residual clauses in Section
4B1.2 and § 924(c) are equally vague)].On March 6, 2017,
the Supreme Court issued Beckles v. United States,
which held that the United States Sentencing Guidelines are
“not amenable to vagueness challenges.” 137 S.Ct.
886, 894 (2017). Two weeks later, this Court entered an Order
(1) explaining that Beckles necessarily meant that
“Johnson . . . does not undermine sentences
based on Guideline enhancements;” (2) instructing the
parties to “file any motion that they want[ed] the
Court to consider in conjunction with, or prior to, ruling on
[the instant] petition on or before April 1, 2017;”
and (3) requiring that responsive pleadings be filed on or
before April 15, 2017 [Doc. 95].
March 31, 2017, FDSET filed two motions: one asking to
withdraw as appointed counsel under the Standing Order in
light of Beckles [Doc. 97 (explaining that she
cannot further pursue a motion to vacate under
Johnson according to the limited appointment
authorization provided by the Standing Order)]; and another
requesting that the Court grant Petitioner leave and a 30-day
extension of time to file pro se arguments in
support of the existing-petition [Doc. 96].
March 31, 2017, the United States filed the instant motion to
dismiss Petitioner's Johnson-based challenge to
his career offender designation in light of Beckles
[Doc. 130]. Petitioner has not filed a response and the time
for doing so has now passed [Doc. 129]. This Court interprets
the absence of a response as a waiver of opposition. See,
e.g., Notredan, LLC v. Old Republic Exch.
Facilitator Co., 531 F. App'x 567, 569 (6th Cir.
2013) (explaining that failure to respond or otherwise oppose
a motion to dismiss operates as both a waiver of opposition
to, and an independent basis for granting, the unopposed
motion); see also E.D. Tenn. L.R. 7.2
(“Failure to respond to a motion may be deemed a waiver
of any opposition to the relief sought”).
RESOLUTION OF NON-DISPOSITIVE MOTIONS
Beckles forecloses any possibility of
Johnson-based relief, the request to withdraw [Doc.
97] will be GRANTED and counsel will be relieved of her
duties under the Standing Order. The request for an extension
of time [Doc. 96] will be DENIED because Petitioner has had
more than enough time to submit pro se arguments in support
of his existing grounds or supplement the same with
additional theories of collateral relief. The petition has
been pending before this Court for nearly a year-and-a-half.
Further, more than a month has passed since the Supreme Court
decided Beckles. The Court finds any extension would be
inappropriate under the circumstances.
DISPOSITIVE MOTION AND § 2255 PETITION
extent that Petitioner challenges his career offender
designation based on Johnson, that argument fails
because the Guidelines are not subject to void for vagueness
analysis. Beckles, 137 S.Ct. 894. To the extent
Petitioner argues that Johnson invalidated the
residual clause in § 924(c)(3)(B)'s definition of
crime of violence and that the absence of that provision
requires vacatur of his two convictions under §
924(c)(1)(A), that argument fails because binding Sixth
Circuit precedent holds that while Johnson
invalidated the residual provision of the ACCA, §
924(c)(3)(B)'s definition of crime of violence remains
unaffected. See United States v. Taylor, 814 F.3d
340, 376-79 (6th Cir. 2016) (recognizing at least four
“significant differences” between the residual
clause in § 924(c)(3)(B) and the ACCA's residual
clause and noting “the argument that Johnson
effectively invalidated [the former] is . . . without
merit”). As such, Hobbs Act robbery remains a crime of
violence capable of supporting his convictions under §
these reasons and because this Court interprets
Petitioner's failure to respond to the United States'
request for dismissal as a waiver of opposition, the motion
to deny and dismiss [Doc. 98] will be GRANTED and
Petitioner's supplemented § 2255 petition [Docs. 75,
77, 86] will be DENIED and DISMISSED WITH PREJUDICE.
FDSET's motion to withdraw [Doc. 97] will be GRANTED and
request for an extension of time [Doc. 96] will be DENIED.
This 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).
 In 2003, Petitioner pled guilty to
seven counts of armed robbery, in violation of 18 U.S.C.
§ 1951, and two counts of possessing a firearm in
furtherance of a crime of violence, in violation of 18 U.S.C.
§ 924(c) [Doc. 27]. He faced statutory ranges of up to
twenty years' imprisonment for the robbery offenses and
mandatory consecutive sentences of seven years up to life
imprisonment for the first § 924(c) conviction and
twenty-five years up to life imprisonment for the second
§ 924(c) offense [Presentence Investigation Report (PSR)
¶ 151]. Based on prior Tennessee convictions for
aggravated burglary and facilitation of armed robbery, the
United States Probation Office deemed Petitioner to be a
career offender under Section 4B1.1 of the United States
Sentencing Guidelines [Id. ¶¶ 111, 121,
124, 151]. His effective Guideline range was between 535 and
572 months' imprisonment [Id. ¶¶ 151,