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East v. United States

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

April 20, 2017

JOHN DAVID EAST, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          J. RONNIE GREER UNITED STATES DISTRICT JUDGE.

         I. BACKGROUND

         Before the Court is Petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 27].[1] 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.

         On 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].

         Based 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].

         On 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)].

         On 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.

         II. MOTION TO DISMISS WITH PREJUDICE

         In 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”).

         For the reasons discussed in detail below, that request [Doc. 33] 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. ANALYSIS

         Petitioner 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. 27].[2] The United States opposes the requested relief for two reasons: Petitioner waived the right to collaterally challenge his sentence in his plea agreement; ...


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