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Long v. United States

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

April 19, 2017

ANTHONY LONG, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          HARRY S. MATTICE, JR. UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 749].[1] 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.

         I. BACKGROUND

         Petitioner 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.].

         In 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)].

         Based 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).

         The 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)].

         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. 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.

         II. MOTION TO DISMISS WITH PREJUDICE

         In 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 sought”).

         For the reasons discussed in detail below, that request [Doc. 777] will be GRANTED.

         III. STANDARD OF REVIEW

         The 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).

         IV. ...


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