United States District Court, E.D. Tennessee, Greeneville
JASON J. SEAL, Petitioner,
UNITED STATES OF AMERICA, Respondent.
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 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.
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)].
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].
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).
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]. 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)].
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
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
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”).
reasons discussed in detail below, the motion [Doc. 53] will
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).