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Seal v. United States

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

April 20, 2017

JASON J. SEAL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          J. RONNIE GREER 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. 47].[1] The United States responded in opposition on August 1, 2016 [Doc. 50]; Petitioner replied in turn on August 29, 2016 [Doc. 51]. Recently, the United States filed a motion to deny and dismiss the petition based on an intervening decision of the Supreme Court [Doc. 53]. Petitioner did not respond in opposition to dismissal and the time for doing so has passed [Doc. 52]. For the reasons below, the motion to deny and dismiss [Doc. 53] will be GRANTED and the petition [Doc. 47] will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In 2008, Petitioner pled guilty to possessing firearms as a felon, in violation of 18 U.S.C. § 922(g)(1), and possessing equipment, chemicals, products, and materials used to manufacture methamphetamine, in violation of 21 U.S.C. § 843(a)(6)-the latter carried a statutory maximum ten-year term of imprisonment [Doc. 15 ¶ 1]. In Petitioner's plea agreement, he “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. ¶ 12(b)].

         Based on prior Tennessee convictions for aggravated burglary [Presentence Investigation Report (PSR) ¶ 53], reckless endangerment [Id. ¶ 60], and aggravated assault [Id. ¶ 62], the United States Probation Office deemed petitioner to be an armed career criminal subject to the Armed Career Criminal Act's (ACCA), 18 U.S.C. § 924(e), enhanced fifteen-year statutory minimum [Id. ¶ 82]. The aggravated burglary and aggravated assault offense also resulted in the application of an enhanced base offense level under Section 2K2.1(a) of the United States Sentencing Guidelines [Id. ¶ 20]. A two-level enhancement for possessing at least three firearms [Id. ¶ 21], four-level enhancement for possessing the firearms in connection with another felony offense [Id. ¶ 22], and three-level reduction for acceptance of responsibility [Id. ¶ 40], resulted in a total offense level of twenty-seven. Combined with his criminal history category of VI, Petitioner's total offense level yielded an advisory Guideline range of 188 to 235 months' imprisonment [Id. ¶ 83].

         On January 28, 2009, the Court sentenced Petitioner to 188 months' imprisonment [Doc. 26]. Petitioner did not file a direct appeal and, as a result, his judgment became final for purposes of § 2255(f)(1) on February 11, 2009. 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).

         On January 27, 2010, Petitioner filed a § 2255 motion challenging his ACCA designation in light of Begay v. United States, 533 U.S. 137 (2008). Because the conviction for reckless endangerment no longer qualified as a violent felony, this Court granted the petition and reduced Petitioner's sentence to ten-years' incarceration-the maximum applicable to a non-ACCA offender, 18 U.S.C. § 924(a)(2) [Docs. 41, 42].[2] On June 26, 2015, the Supreme Court invalidated the ACCA residual clause in Johnson v. United States, 135 S.Ct. 2551 (2015). Petitioner filed the instant petition less than one year later [Doc. 47 (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. 52]. On March 28, 2017, the United States filed a motion to dismiss Petitioner's Johnson-based challenge in light of Beckles [Doc. 53]. Petitioner did not file a response in opposition to dismissal.

         I. 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 field a “notice” on March 30, 2017, informing the Court that he was “released from Bureau of Prisons custody on March 29, 2017” and, as a result, that his § 2255 action was now moot [Doc. 54]. Nowhere in that notice, however, did Petitioner contest the United States's request for dismissal of the action with prejudice based on Beckles [Id.]. The time for responding in opposition to the United States's request has now passed [Doc. 52] and this Court interprets the absence of any such 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, the motion [Doc. 53] will be GRANTED

         II. 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).

         III. ...


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