United States District Court, E.D. Tennessee, Chattanooga
S. MATTICE, JR. 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.
749]. The United States responded in opposition
on July 29, 2016 [Doc. 753]; Petitioner replied in turn on
September 14, 2016 [Doc. 760]. Recently, the United States
filed a motion to deny and dismiss the petition based on an
intervening decision of the Supreme Court [Doc. 777].
Petitioner did not respond and the time for doing so has now
passed [Doc. 776]. For the reasons below, the motion to deny
and dismiss [Doc. 777] will be GRANTED and the petition [Doc.
749] will be DENIED and DISMISSED WITH PREJUDICE.
conspired with others to obtain methamphetamine from Atlanta,
Georgia, and redistribute it in other locations, including
Polk County, Tennessee [Doc. 547 ¶ 3]. Petitioner worked
as a courier transporting methamphetamine and cash between
other co-defendants [Id.].
2014, Petitioner pled guilty to conspiring to distribute
methamphetamine, in violation of 21 U.S.C. §§ 846
and 841(a)(1), (b)(1)(C) [Id. ¶ 1]. In his plea
agreement, Petitioner “knowingly and voluntarily
waive[d] the right to file any motions or pleadings pursuant
to 28 U.S.C. § 2255, ” except for “claims of
ineffective assistance of counsel or prosecutorial
misconduct” [Id. ¶ 11(b)].
on a prior Georgia conviction for burglary and prior Oklahoma
conviction for possession of a controlled substance with
intent to distribute, the United States Probation Office
deemed Petitioner to be a career offender under Section 4B1.1
of the United States Sentencing Guidelines with an advisory
Guideline range of 188 to 235 months' imprisonment
[Presentence Investigation Report (PSR) ¶¶ 20, 28,
29, 49]. The Court sentenced Petitioner to a below-Guidelines
term of 168 months' incarceration on September 25, 2014
[Doc. 667]. He did not appeal and the judgment became final
for purposes of § 2255(f)(1) on October 9, 2014.
See, e.g., Sanchez-Castellano v. United
States, 358 F.3d 424, 428 (6th Cir. 2004) (an unappealed
judgment of conviction becomes final when the fourteen-day
period for filing a direct appeal has elapsed).
United States Supreme Court decided Johnson v. United
States-invalidating the residual clause of the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e)-on June 26, 2015. 135 S.Ct. 2551 (2015). Petitioner
filed the instant petition less than one year later [Doc. 749
(challenging his career offender designation)].
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. 776]. On March 26, 2017, the United
States filed a motion to dismiss Petitioner's
Johnson-based challenge to his career offender
designation in light of Beckles [Doc. 777].
Petitioner did not respond to that motion.
MOTION TO DISMISS WITH PREJUDICE
addition to the petition, this Court is in possession of the
United States' request to deny and dismiss
Petitioner's collateral challenge to her career offender
designation in light of Beckles. Petitioner has not
filed a response and the time for doing so has now passed
[Doc. 776]. 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
reasons discussed in detail below, that request [Doc. 777]
will be GRANTED.
STANDARD OF REVIEW
relief authorized by 28 U.S.C. § 2255 “does not
encompass all claimed errors in conviction and
sentencing.” United States v. Addonizio, 442
U.S. 178, 185 (1979). Rather, a 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).