United States District Court, E.D. Tennessee, Chattanooga
K. LEE MAGISTRATE JUDGE
R. MCDONOUGH 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.
128.) Petitioner submitted the relevant § 2255 petition
on July 29, 2016. (Doc. 122.) 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 (suggesting that his sentence is no longer
valid because the residual clause in Section 4B1.2 is equally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 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, FDSET filed two motions: one asking to withdraw
as appointed counsel under the Standing Order in light of
Beckles (Doc. 127 (explaining that she cannot
further pursue a motion to vacate under Johnson
according to the limited appointment authorization provided
by the Standing Order)); and another requesting that the
Court grant Petitioner leave and a 30-day extension of time
to file additional pro se grounds for collateral
relief (Doc. 126).
April 1, 2017, the United States filed the instant motion to
dismiss Petitioner's Johnson-based challenge in
light of Beckles. (Doc. 128.) 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”).
RESOLUTION OF NON-DISPOSITIVE MOTIONS
Beckles forecloses any possibility of
Johnson-based relief, the request to withdraw (Doc.
127) will be GRANTED, and counsel will be relieved of her
duties under the Standing Order. The request for an extension
to file additional pro se claims (Doc. 126) will be DENIED.
it is true that Rule 15(a) of the Federal Rules of Civil
Procedure provides that leave to amend should “be
freely given when justice so requires, ” Fed.R.Civ.P.
15(a), relevant factors include “undue delay in filing,
lack of notice to the opposing party, bad faith by the moving
party, repeated failure to cure deficiencies by previous
amendments, undue prejudice to the opposing party, and
futility of amendment.” Anderson v. Young
Touchstone Co., 735 F.Supp.2d 831, 833 (W.D. Tenn. 2010)
(quoting Forman v. Davis, 371 U.S. 178, 182 (1965)).
FDSET filed the original petition on July 19, 2016. (Doc.
122.) At no point during the seven-month period leading up to
the Beckles decision did Petitioner attempt to
supplement FDSET's filing with alternative grounds for
relief. In light of this unjustified delay, an extension of
time would be inappropriate.
DISPOSITIVE MOTION AND § 2255 PETITION
extent that Petitioner argues that Johnson
invalidated the Guideline residual clause and that, without
that clause, Petitioner's prior conviction for aggravated
burglary cannot be categorized as a crime of violence, that
argument fails because the United States Sentencing
Guidelines are “not amenable to vagueness
challenges.” Beckles, 137 S.Ct. at 894.
Because Johnson does not affect Petitioner's
enhanced base offense level, it cannot justify relief.
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. 128) will be GRANTED and
Petitioner's § 2255 petition (Doc. 122) will be
DENIED and DISMISSED WITH PREJUDICE. FDSET's motion to
withdraw (Doc. 127) will be GRANTED and request for an
extension of time (Doc. 126) will be DENIED. 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).