United States District Court, E.D. Tennessee, Greeneville
RONNIE GREER 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.
The United States responded in opposition on June 30, 2016
[Doc. 30]; Petitioner replied in turn on July 27, 2016 [Doc.
31]. Recently, the United States filed a motion to deny and
dismiss the petition based on an intervening decision of the
Supreme Court [Doc. 33]. Petitioner did not respond and the
time for doing so has now passed [Doc. 32]. For the reasons
below, the motion to deny and dismiss [Doc. 33] will be
GRANTED and the petition [Doc. 27] will be DENIED and
DISMISSED WITH PREJUDICE.
August 2, 2004, Petitioner threatened to kill another
individual and fired several gunshots at that
individual's house [Presentence Investigation Report
(PSR) ¶¶ 6-7]. Petitioner later pled guilty to
possessing firearms as a felon, in violation of 18 U.S.C.
§ 922(g)(1), which subjected him to a statutory penalty
range of up to ten years' imprisonment under 18 U.S.C.
924(a)(2) [Id. ¶ 57]. In his plea agreement,
Petitioner “agree[d] not to file . . . any motions or
pleadings pursuant to 28 U.S.C. § 2255, ” except
for “claims of ineffective assistance of counsel or
prosecutorial misconduct” [Doc. 9 ¶ 12].
on prior Tennessee drug and felony escape convictions, the
United States Probation Office assigned Petitioner an
enhanced base offense level under Section 2K2.1(a) of the
United States Sentencing Guidelines [PSR ¶ 13]. A
four-level enhancement for possessing the firearm in
connection with another felony offense [Id. ¶
14], and a three-level reduction for acceptance of
responsibility [Id. ¶¶ 19], resulted in a
total offense level of twenty-five [Id. ¶ 22].
Combined with his criminal history category of V,
Petitioner's total offense level yielded an advisory
Guideline range of 100 to 125 months' imprisonment
restricted by the ten year statutory maximum sentence allowed
under § 924(a)(2) [Id. ¶ 58].
September 6, 2005, the Court sentenced Petitioner to 120
months' imprisonment [Doc. 20]. Petitioner did not file a
direct appeal and, as a result, his judgment became final for
purposes of § 2255(f)(1) on September 20, 2005. See,
.e.g., Sanchez-Castellano v. United States, 358
F.3d 424, 428 (6th Cir. 2004) (explaining that an unappealed
judgment of conviction becomes final when the fourteen-day
period for filing a direct appeal has elapsed). The 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. 27 (challenging his
base offense level)].
March 6, 2017, the Supreme Court decided 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. 32]. On March 28, 2017, the United
States filed a motion to dismiss Petitioner's
Johnson-based challenge in light of Beckles
[Doc. 33]. 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's request to deny and dismiss
Petitioner's collateral challenge to his base offense
level enhancement in light of Beckles. Petitioner
has not filed a response and the time for doing so has now
passed [Doc. 32]. 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”).
reasons discussed in detail below, that request [Doc. 33]
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).
articulates a single ground for relief, arguing that the
Johnson decision removed Tennessee felony evading
arrest from Section 4B1.2's definition of “crime of
violence” and that, without that conviction, he lacks
sufficient predicate offenses for enhancement [Doc.
The United States opposes the requested relief for two
reasons: Petitioner waived the right to collaterally
challenge his sentence in his plea agreement; ...