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Curb v. United States

United States District Court, E.D. Tennessee

April 26, 2017

ADRIAN CONAN CURB, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          THOMAS A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner's successive motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 69].[1] The United States responded in opposition on February 7, 2017 [Doc. 70]. Petitioner did not reply and the time for doing so has now passed. E.D. Tenn. L.R. 7.1, 7.2. Recently, the United States filed a motion to deny and dismiss the petition based on an intervening decision of the Supreme Court [Doc. 73]. In response, FDSET requested that the Court allow an unspecified amount of time for the submission of pro se supplements [Docs. 74, 75][2] and Petitioner filed two supplemental pleadings [Docs. 76, 77]. For the reasons below, FDSET's requests for an extension of time to amend [Docs. 74, 75] will be DENIED, the United States' motion to deny and dismiss [Doc. 73] will be GRANTED, and the supplemented § 2255 motion [Docs. 69, 76, 77] will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In 2005, Petitioner pled guilty and was convicted of two counts of distributing crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and (b)(1)(C), respectively [Doc. 24]. Based on two prior convictions-possession of cocaine for resale and Tennessee aggravated assault, the United States Probation Office deemed Petitioner to be a career offender under Section 4B1.1 of the United States Sentencing Guidelines with a corresponding Guideline range of 262 to 327 months [Presentence Investigation Report (PSR) ¶¶ 25, 30, 33]. In accordance with that designation, this Court sentenced Petitioner to 262 months' incarceration on February 23, 2007 [Doc. 24]. Petitioner appealed; the Sixth Circuit remanded the case because the record did not establish that this Court recognized “its authority to vary categorically from the career offender Guidelines based on a policy disagreement with the 100:1 crack-to-powder ratio.” United States v. Curb, 625 F.3d 958, 973 (6th Cir. 2010). On remand, this Court reimposed the same sentence.

         On April 30, 2012, Petitioner filed a motion to vacate, set aside, or correct his sentence under § 2255 [Doc. 52]. This Court denied that petition on the merits in a Memorandum Opinion and Judgment Order entered on July 15, 2015 [Docs. 61, 62]. On June 26, 2015, the Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), was unconstitutionally vague in Johnson v. United States, 135 S.Ct. 2551 (2015). Petitioner filed a successive petition based on Johnson [Doc. 64], but this Court transferred that filing to the Sixth Circuit because Petitioner had not obtained authorization under § 2255(h)(2) [Docs. 65, 66]. On February 7, 2017, the Sixth Circuit authorized consideration of a successive collateral challenge based on Johnson and transferred the petition back to this Court for adjudication [Docs. 67-69]. The transferred petition contained a single ground for relief: Johnson invalidated the identically worded Guidelines residual clause, Petitioner's aggravated assault conviction only qualified as a crime of violence under Section 4B1.2 by way of that provision, and, without it, Petitioner lacked sufficient predicates for career offender enhancement [Doc. 69].

         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. 72].

         On March 24, 2017, the United States filed a motion to dismiss Petitioner's Johnson-based challenge in light of Beckles [Doc. 73]. Three days later, FDSET requested that this Court afford Petitioner an unspecified amount of time to file pro se arguments in support of his existing petition [Docs. 74, 75]. Petitioner filed supplements on April 3, 2017 and April 17, 2017 [Docs. 76, 77].

         II. RESOLUTION OF NON-DISPOSITIVE MOTIONS

         FDSET's requests that this Court afford Petitioner an unspecified amount of time to file pro se arguments in support of his existing petition for relief [Docs. 74, 75] will be DENIED for two reasons. First, FDSET does not specify the length extension sought and an indefinite delay of proceedings would not be appropriate under the circumstances. Second, Petitioner's recent submission of two pro se supplements renders FDSET's request for an extension moot.

         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 career offender designation in light of Beckles. In response, Petitioner submitted two pro se supplements the cumulative effect of which is as follows: Petitioner remains entitled to vacatur of his career offender designation because (1) he was convicted of reckless aggravated assault and, (2) regardless of whether or not the residual clause remains in effect, reckless crimes cannot be categorized as crimes of violence after Begay v. United States, 553 U.S. 137 (2008), and United States v. McMurray, 653 F.3d 367 (6th Cir. 2011) [Doc. 76 (explaining that, regardless of “whether the residual clause of the Guidelines is void for vagueness or not, the petitioner's Tennessee crime of reckless aggravated assault is not deemed a crime of violence due to its reckless nature”); Doc. 77]. Petitioner also argues that he would have received a significantly shorter sentence under Amendments 706, 750, and 782 to the United States Sentencing Guidelines had he not been deemed a career offender [Doc. 77].

         For the reasons that follow, the motion to deny and dismiss [Doc. 73] will be GRANTED.

         IV. SUPPLEMENTED PETITION FOR COLLATERAL RELIEF

         A. ...


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