United States District Court, E.D. Tennessee, Greeneville
RONNIE GREER UNITED STATES DISTRICT JUDGE.
the Court is the United States's motion to deny and
dismiss Petitioner's pro se motion to vacate, set aside,
or correct his sentence pursuant to 28 U.S.C. § 2255
[Doc. 52]. Petitioner submitted the relevant § 2255
petition on June 23, 2016 [Doc. 46]. 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 (suggesting that his sentence is no longer
valid because the residual provision in Section 4B1.2 is
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. 51].
March 27, 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. 52]. On April 13, 2017, Petitioner filed two motions:
the first motion requests an extension of time, presumably so
that he can file additional pro se arguments in support of
collateral relief [Doc. 54]; and the second motion requests
the appointment of counsel to “help [him] with [his]
case” [Doc. 55].
RESOLUTION OF NON-DISPOSITIVE MOTIONS
pro se request for an extension of time [Doc. 54] will be
DENIED because he has already had more than enough time to
submit pro se arguments in support of his existing ground or
supplement the same with additional theories of collateral
relief. The petition has been pending before this Court for
nearly eight months and more than a month has passed since
the Supreme Court decided Beckles. An extension
would be inappropriate under the circumstances.
pro se request for the appointment of counsel to assist in
his case will be DENIED because the Court does not find that
he has demonstrated counsel is necessary to ensure that the
existing claims for collateral relief are fairly heard.
Mira v. Marshall, 806 F.2d 636 (6th Cir. 1986);
see also Childs v. Pellegrin, 822 F.2d 1382, 1384
(6th Cir. 1987) (explaining that the appointment of counsel
in a civil case is a matter within the discretion of the
MOTION TO DISMISS WITH PREJUDICE
extent that Petitioner challenges his base offense level
based on Johnson, that argument fails because the
Guidelines are not subject to void for vagueness analysis.
Beckles, 137 S.Ct. 894. Thus, Tennessee aggravated
assault remains a crime of violence under Section 4B1.2.
foregoing reasons, Petitioner's pro se requests for an
extension of time [Doc. 54] and the appointment of counsel to
“assist [him] with [his] case” [Doc. 55] will be
DENIED. Further, because Beckles forecloses
Johnson-based collateral relief from
Petitioner's Guideline enhancement, the United
States's motion to deny and dismiss [Doc. 52] will be
GRANTED and Petitioner's pro se petition [Doc. 46] will
be DENIED and DISMISSED WITH PREJUDICE.
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).