United States District Court, E.D. Tennessee, Chattanooga
R. MCDONOUGH UNITED STATES DISTRICT JUDGE
the Court is the United States' motion to deny and
dismiss Petitioner's supplemented motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255 [Doc. 47]. Petitioner filed the petition on June 20,
2016 [Docs. 42, 43, 44]. 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sentence is no longer valid because the Guidelines residual
provision is equally vague)].
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). Shortly
thereafter-on March 30, 2017, the United States filed the
instant motion to dismiss Petitioner's
Johnson-based challenge in light of Beckles
[Doc. 47]. Petitioner has not filed a response, and the time
for doing so has now passed. E.D. Tenn. L.R. 7.1, 7.2. 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
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”).
addition to the motion to dismiss, this Court is in
possession of the United States' motion to hold the
petition in abeyance pending Beckles. Because the
Supreme Court issued that decision on March 6, 2017, the
United States' motion [Doc. 46] is moot and will be
Beckles forecloses Johnson-based collateral
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 [Doc.
47] will be GRANTED and the supplemented petition [Docs. 42,
43, 44] will be DENIED and DISMISSED WITH PREJUDICE. 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 Defenders Services of Eastern Tennessee
(FDSET) for the limited purpose of reviewing Petitioner's
case to determine whether he was entitled to collateral
relief based on Johnson v. United States, 135 S.Ct. 2551
(2015). E.D. Tenn. S.O. 16-02 (Feb. 11, 2016). Petitioner
field a pro se challenge based on Johnson [Doc. 42] and,
consistent with the Standing Order, FDSET filed a supplement
in support of that claim [Doc. 43]. Three days later,
Petitioner field a second copy of the original petition [Doc.
 The ACCA mandates a fifteen-year
sentence for any felon who unlawfully possesses a firearm
after having sustained three prior convictions “for a
violent felony or a serious drug offense, or both, committed
on occasions different from one another.” 18 U.S.C.
§ 924(e)(1). The statute defines “violent
felony” as “any crime punishable by imprisonment
for a term exceeding one year” that (1) “has as
an element the use, attempted use, or threatened use of
physical force against the person of another” (the
“use-of-physical-force clause”); (2) “is
burglary, arson, or extortion, involves the use of
explosives” (the “enumerated-offense
clause”); or (3) “otherwise involves conduct that
presents a serious potential risk of physical injury to
another” (the “residual clause”). 18 U.S.C.
§ 924(e)(2)(B). It was this third clause-the residual
clause-that the Supreme Court deemed unconstitutional in
Johnson. 135 S.Ct. at 2563.
The Guidelines set a general base offense level of
fourteen for violating 18 U.S.C. § 922(g). U.S.
Sentencing Manual § 2K2.1(a)(6). For offenders with one
prior conviction for either a “crime of violence”
or “controlled substance offense, ” the base
offense level increases to twenty. U.S. Sentencing Manual
§ 2K2.1(a)(4). Offenders with two such convictions face
a base offense level of twenty-four. U.S. Sentencing Manual
§ 2K2.1(a)(2). “Controlled substance
offense” is defined as any offense “punishable by
imprisonment for a term exceeding one year, that prohibits
the manufacture, import, export, distribution, or dispensing
of a controlled substance . . . or the possession of
controlled substance . . . with intent to manufacture,
import, export, distribute, or dispense.” U.S.
Sentencing Manual § 4B1.2(b). “Crime of
violence” is ...