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Selvidge v. United States

United States District Court, E.D. Tennessee

April 26, 2017

MICHAEL AARON SELVIDGE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          THOMAS A. VARLAN CHIEF 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. 26].[1] 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.]. Recently, the United States filed a motion to deny and dismiss the petition based on an intervening decision of the Supreme Court [Doc. 36]. Also before the Court is Petitioner's pro se request for an evidentiary hearing [Doc. 34]. For the reasons below, the request for an evidentiary hearing [Doc. 34] will be DENIED, the motion to deny and dismiss [Doc. 36] will be GRANTED, and the pro se § 2255 motion [Doc. 26] will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In 2015, Petitioner was convicted of possessing a firearm as a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) [Docs.13, 14, 23]. Based on a prior Tennessee conviction for aggravated burglary, the United States Probation Office assigned Petitioner an enhanced base offense level of twenty under Section 2K2.1(a)(4) of the United States Sentencing Guidelines with a Guidelines range of 70 to 87 months [Presentence Investigation Report (PSR) ¶¶ 14, 37]. In accordance with that designation, this Court sentenced Petitioner to 72 months' incarceration on February 24, 2016 [Doc. 23]. Petitioner did file a direct appeal of conviction or sentence, but instead field the instant pro se motion for post-conviction relief based on Johnson [Doc. 26].

         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. 33]. On March 28, 2017, the United States filed a motion to dismiss Petitioner's Johnson-based challenge to his career offender designation in light of Beckles [Doc. 36]. Petitioner has not responded in opposition.

         II. REQUEST FOR AN EVIDENTIARY HEARING

         Under Rule 8 of the rules governing § 2255 proceedings in United States District Courts (the “§ 2255 Rules”), courts must determine, based on a review of the answer and the record, whether an evidentiary hearing is required. Pola v. United States, 778 F.3d 525, 532 (6th Cir. 2015) (quoting Huff v. United States, 734 F.3d 600, 607 (6th Cir. 2013)). The burden to show an entitlement to an evidentiary hearing is relatively light, but must offer more than mere assertions of innocence. Valentine v. United States, 488 F.3d 325, 334 (6th Cir. 2007) (quoting Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999)). For example, a petitioner is entitled to an evidentiary hearing where he presents “a factual narrative of the events that is neither contradicted by the record nor inherently incredible and the Government offers nothing more than contrary representations to contradict it.” Huff, 734 F.3d at 707 (quoting Valentine, 488 F.3d at 334); see also Pola, 778 F.3d at 534 (noting an evidentiary hearing would be required where affidavits directly contradicted each other regarding whether Petitioner had requested counsel to file a notice of appeal). In contrast, an evidentiary hearing is not required where the record conclusively shows a petitioner is entitled to no relief. Huff, 734 F.3d at 607 (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)).

         Petitioner has not identified any material factual dispute requiring resolution by way of an evidentiary hearing. Further, for reasons discussed at length in the sections that follow, the Court finds the undisputed record conclusively precludes collateral relief. The motion will be denied.

         III. 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 base offense level in light of Beckles. Petitioner has not filed a response and the time for doing so has now passed [Doc. 33]. This Court interprets the absence of a response as a waiver of opposition to dismissal of the Johnson-based challenge to the application of Section 2K2.1(a)(4). 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, the motion to deny and dismiss will be granted.

         IV. 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 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).

         B. ...


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