United States District Court, E.D. Tennessee, Greeneville
Jordan United States District Judge
the Court is Petitioner's supplemented motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255 [Docs. 40, 48, 57]. The United States responded in
opposition on August 15, 2016 [Doc. 43]; Petitioner replied
in turn on September 13, 2016 [Doc. 49]. Recently, the United
States filed a motion to deny and dismiss the petition based
on an intervening decision of the Supreme Court [Doc. 53]. In
response, Petitioner filed a motion to “proceed pro se
in [his] § 2255 motion” [Doc. 57]. Also before the
Court are FDSET's motions to withdraw as counsel [Doc.
56] and for a 30-day extension for the submission of
additional pro se arguments [Doc. 55]. For the reasons below,
the motion to withdraw [Doc. 56] will be GRANTED, the request
for an extension of time to amend [Docs. 55] will be DENIED,
the motion to deny and dismiss [Doc. 53] will be GRANTED, and
the supplemented § 2255 motion [Docs. 40, 48, 57] will
be DENIED and DISMISSED WITH PREJUDICE.
October of 2014, Petitioner pled guilty, pursuant to a Rule
11(c)(1)(C) plea agreement, to possessing with intent to
distribute cocaine base, in violation of 21 U.S.C. §
841(a)(1), (b)(1)(C), and using and carrying one or more
firearms during and in relation to that drug trafficking
offense, in violation of 18 U.S.C. § 924(c) [Doc. 25].
In the plea agreement, the parties agreed that an aggregate
term of 286 months' imprisonment would be appropriate for
the offenses [Id. ¶ 6], and Petitioner
“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.
on prior Tennessee convictions for felony evading arrest and
burglary of a habitation, the United States Probation Office
deemed Petitioner to be a career offender under Section 4B1.1
of the United States Sentencing Guidelines with an advisory
Guideline range of 262 to 327 months' imprisonment
[Presentence Investigation Report (PSR) ¶¶ 24, 40,
44, 69]. Consistent with the plea agreement, this Court
sentenced Petitioner to an aggregate term of 286 months'
imprisonment on February 12, 2015 [Doc. 34]. Petitioner did
not file a direct appeal.
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 within a year of that decision
[Doc. 40]. On September 6, 2016, Petitioner field a pro se
supplement to the original petition [Doc. 48].
March 6, 2017, the Supreme Court issued 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]. On March 31, 2017, FDSET filed two
motions: one asking to withdraw as appointed counsel under
the Standing Order in light of Beckles [Doc. 56
(explaining that she cannot further pursue a motion to vacate
under Johnson according to the limited appointment
authorization provided by the Standing Order)]; and another
requesting that the Court grant Petitioner leave and a 30-day
extension of time to file additional pro se grounds
for collateral relief [Doc. 55]. That same day, the United
States filed a motion to dismiss Petitioner's
Johnson-based challenge in light of Beckles
[Doc. 53]. In response, Petitioner filed a motion to
“proceed pro se” [Doc. 57].
RESOLUTION OF NON-DISPOSITIVE MOTIONS
Beckles forecloses any possibility of
Johnson-based relief, the request to withdraw [Doc.
56] will be GRANTED and counsel will be relieved of her
duties under the Standing Order. The request for an extension
to file additional pro se claims [Doc. 55] will also be
it is true that Rule 15(a) of the Federal Rules of Civil
Procedure provides that leave to amend should “be
freely given when justice so requires, ” Fed.R.Civ.P.
15(a), relevant factors include “undue delay in filing,
lack of notice to the opposing party, bad faith by the moving
party, repeated failure to cure deficiencies by previous
amendments, undue prejudice to the opposing party, and
futility of amendment.” Anderson v. Young
Touchstone Co., 735 F.Supp.2d 831, 833 (W.D. Tenn. 2010)
(quoting Forman v. Davis, 371 U.S. 178, 182 (1965)).
FDSET filed the original petition on June 9, 2016 [Doc. 40].
At no point during the nine-month period leading up to the
Beckles decision did Petitioner attempt to
supplement FDSET's filing with alternative grounds for
relief. In light of this unjustified delay, an extension of
time would be inappropriate.
MOTION TO DISMISS WITH PREJUDICE
addition to the petition, this Court is in possession of the
United States' request to deny and dismiss
Petitioner's collateral challenge to his career offender
designation in light of Beckles. In response,
Petitioner submitted a motion to “proceed pro se in
[his] § 2255 motion” [Doc. 57]. In the motion, he
argues that Beckles does not foreclose the requested
collateral relief for the following reasons: (1) he asserts
an as applied, not facial, challenge to the career offender
enhancement; (2) even if the Guidelines residual provision
remains intact, his prior conviction for felony evading
arrest does not qualify as a crime of violence under Section
4B1.1; (3) he did not commit the prior state offenses in a
violent manner; and (4) the Guideline residual clause is too
vague for this Court to “fulfill [its] duty to arrive
at the appropriate Guideline range” [Doc. 57]. For the
reasons that follow, the motion to deny and dismiss will be
SUPPLEMENTED PETITION FOR COLLATERAL RELIEF