United States District Court, E.D. Tennessee, Knoxville
W. Phillips SENIOR UNITED STATES DISTRICT JUDGE.
the Court is the United States' motion to deny and
dismiss Petitioner's motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255 [Doc.
41]. Petitioner submitted the relevant § 2255 petition
on June 21, 2016 [Doc. 35]. 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 (suggesting that his sentence is no longer
valid because the residual clause in Section 4B1.2 is equally
March 6, 2017, the Supreme Court decided Beckles v.
United States, holding 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. 39].
March 31, 2017, FDSET filed a motion asking to withdraw as
appointed counsel under the Standing Order in light of
Beckles [Doc. 40 (explaining that she cannot further
pursue a motion to vacate under Johnson according to
the limited appointment authorization provided by the
Standing Order)]. On that same day, the United States filed
the instant motion to dismiss Petitioner's
Johnson-based challenge to his career offender
designation in light of Beckles [Doc. 41].
Petitioner has not filed a response and the time for doing so
has now passed [Doc. 39]. 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”).
RESOLUTION OF NON-DISPOSITIVE MOTION
Beckles forecloses any possibility of
Johnson-based relief, the request to withdraw [Doc.
40] will be GRANTED and counsel will be relieved of her
duties under the Standing Order.
DISPOSITIVE MOTION AND § 2255 PETITION
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. Because Beckles
forecloses Johnson-based relief from
Petitioner's Guideline enhancement and because this Court
interprets Petitioner's failure to respond to the United
States' request for dismissal as a waiver of opposition,
the motion to deny and dismiss will be granted.
foregoing reasons and because this Court interprets
Petitioner's failure to respond to the United States'
request for dismissal as a waiver of opposition, the motion
to deny and dismiss [Doc. 41] will be GRANTED and
Petitioner's § 2255 petition [Doc. 35] will be
DENIED and DISMISSED WITH PREJUDICE. FDSET's motion to
withdraw [Doc. 40] will be GRANTED. This 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).
 On February 11, 2016, this Court
appointed Federal Defender Services of Eastern Tennessee
(FDSET) for the limited purpose of reviewing the case to
determine whether Petitioner is eligible for collateral
relief based on the Johnson decision. See
E.D. Tenn. SO-16-02 (Feb. 11, 2016). ...