United States District Court, E.D. Tennessee, Winchester
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE
the Court is the United States' motion to deny and
dismiss Petitioner's motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255 [Doc.
41]. Petitioner submitted the relevant § 2255 petition
on September 26, 2016 [Doc. 37]. In it, he challenges his
enhancement under Section 2K2.1 of the United States
Sentencing Guidelines 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 (suggesting that his sentence is no longer
valid because the residual clause in Section 4B1.2 is equally
vague)].Consistent with the Sixth Circuit's
instruction, this Court stayed the action pending Beckles
v. United States, 137 S.Ct. 886 (2017).
March 6, 2017, the Supreme Court decided Beckles and
held that the United States Sentencing Guidelines are
“not amenable to vagueness challenges.”
Id. at 894. 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. 40].
March 24, 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. 41]. Petitioner has not filed a response and the time
for doing so has now passed [Doc. 40]. 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”).
March 31, 2017, FDSET filed a motion asking to withdraw as
appointed counsel under the Standing Order in light of
Beckles [Doc. 42 (explaining that she cannot further
pursue a motion to vacate under Johnson according to
the limited appointment authorization provided by the
Standing Order)]. Also before the Court is a request that it
terminate the stay [Doc. 39 (noting that the Sixth Circuit
left the Court free to consider terminating the
Beckles-based stay under appropriate circumstances,
either on motion or sua sponte)].
RESOLUTION OF NON-DISPOSITIVE MOTIONS
Beckles forecloses any possibility of
Johnson-based relief, the request to withdraw [Doc.
42] will be GRANTED and counsel will be relieved of her
duties under the Standing Order. The request to terminate the
stay will be [Doc. 39] GRANTED because Beckles has
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. Because
Beckles forecloses Johnson-based relief
from Petitioner's Guideline enhancement 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 will be granted.
foregoing 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. 41] will be GRANTED and
Petitioner's § 2255 petition [Doc. 37] will be
DENIED and DISMISSED WITH PREJUDICE. FDSET's motion to
withdraw [Doc. 42] and request to lift the stay [Doc. 39]
will be GRANTED. 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).