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O'Dell v. United States

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

April 21, 2017

DAVID W. O'DELL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          Thomas W. Phillips SENIOR UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 423]. He basis his request for relief at least in part on Johnson v. United States, 135 S.Ct. 2551 (2015), which held that the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), was unconstitutionally vague [Id.; Doc. 424]. The United States filed an initial response in opposition on August 10, 2016 [Doc. 446], and supplemented that response on January 10, 2017 [Doc. 451]. Recently, the United States filed a motion to deny and dismiss the petition based on an intervening decision of the Supreme Court [Doc. 462]. Also before the Court is Petitioner's pro se request that this Court “appoint the Federal Defender Services Office” to represent him in light of unspecified “developments regarding the Sixth Circuit Court of Appeals” [Doc. 458]. For the reasons below, the request for counsel [Doc. 458] will be DENIED, the motion to deny and dismiss [Doc. 462] will be GRANTED, and pro se § 2255 motion [Doc. 423] will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In 2015, Petitioner was convicted of conspiring to manufacture at least five grams of methamphetamine, in violation of 21 U.S.C. § 846 and 841(a)(1), (b)(1)(A), and conspiring to distribute methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(C) [Doc. 407]. Based on prior Tennessee convictions for arson of a vehicle and Class D burglary, the United States Probation Office deemed Petitioner to be an a career offender under Section 4B1.1 of the United States Sentencing Guidelines [Presentence Investigation Report (PSR) ¶¶ 43, 58, 63, 65]. In accordance with that designation, this Court sentenced Petitioner to 188 months' incarceration on May 20, 2015 [Doc. 407]. Petitioner did file a direct appeal of conviction or sentence.

         The Supreme Court decided Johnson on June 26, 2015. On June 9, 2016, Petitioner filed the instant petition challenging his career offender enhancement based on that decision [Doc. 423].

         On 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. 462]. On March 31, 2017, the United States filed a motion to dismiss Petitioner's Johnson-based challenge to his career offender designation in light of Beckles [Doc. 462]. Petitioner has not responded in opposition.

         I. REQUEST FOR THE APPOINTMENT OF COUNSEL

         On March 21, 2017, Petitioner filed a pro se motion requesting that this Court “appoint the Federal Public Defenders Office to represent [him] . . . in light of new developments regarding the Sixth Circuit Court of Appeals.” To the extent that Petitioner seeks counsel to assist in litigation of his Johnson-based challenge, that request will be DENIED as moot in light of the fact that this Court already appointed Federal Defenders of Eastern Tennessee (FDSET) by Standing Order to identify and represent all defendants in the Eastern District of Tennessee with a viable argument for collateral relief based on Johnson. E.D. Tenn. S.O. 16-02 (Feb. 11, 2016). To the extent that he requests counsel to aid in some other unidentified and yet-to-be-asserted ground for collateral relief, that request will be DENIED because Petitioner has not demonstrated that counsel is necessary to ensure that those claims are fairly raised or heard. Mira v. Marshall, 806 F.2d 636 (6th Cir. 1986); see also Childs v. Pellegrin, 822 F.2d 1382, 1284 (6th Cir. 1987) (explaining that the appointment of counsel in a civil case is a matter within the discretion of the district court).

         II. MOTION TO DISMISS WITH PREJUDICE

         In 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. Petitioner has not filed a response and the time for doing so has now passed [Doc. 457]. 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”).

         For the reasons discussed in detail below, that request [Doc. 462] will be GRANTED.

         III. PETITION FOR COLLATERAL RELIEF

         A. Standard of Review

         To obtain relief under 28 U.S.C. § 2255, 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 ...


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