United States District Court, E.D. Tennessee
A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE
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]. 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.
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].
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.
REQUEST FOR AN EVIDENTIARY HEARING
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)).
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.
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 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.
PETITION FOR COLLATERAL RELIEF
Standard of Review
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).