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Davis v. United States

United States District Court, E.D. Tennessee

April 26, 2017

MELVIN E. DAVIS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          THOMAS A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner's supplemented successive motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Docs. 169, 171, 175, 182].[1] Recently, the United States filed a motion to deny and dismiss the petition based on an intervening decision of the Supreme Court [Doc. 179]. In response, Petitioner filed a motion acknowledging that the intervening decision foreclosed relief based on Johnson v. United States, 135 S.Ct. 2551 (2015), but requesting that the Court still consider his alternative grounds for relief [Docs. 182, 184]. Also before the Court are FDSET's motions to withdraw as counsel [Doc. 181] and for a 30-day extension for the submission of additional pro se arguments [Doc. 180]. For the reasons below, the motion to withdraw [Doc. 181] will be GRANTED, the request for an extension of time to amend [Docs. 180] will be DENIED, the motion to deny and dismiss [Doc. 179] will be GRANTED, and the supplemented § 2255 petition [Docs. 169, 171, 175, 182] will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In 2006, a jury convicted Petitioner of possessing cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Count One), and possessing cocaine base within intent to distribute within one thousand feet of a public school, in violation of 21 U.S.C. §§ 860(a) and 841(a)(1), (b)(1)(C) (Count Two) [Docs. 93, 103, 111]. Based on at least two prior convictions-facilitation of second-degree murder and 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 Guidelines range of 262 to 327 months' imprisonment [See generally Presentence Investigation Report (PSR)]. In accordance with that designation, this Court sentenced Petitioner to an aggregate term of 262 months' incarceration-a 240-month term for Count One and a concurrent 262-month term for Count Two [Doc. 111]. Petitioner appealed, but the Sixth Circuit affirmed his conviction and sentence [Doc. 116]. The Supreme Court denied Petitioner's request for a writ of certiorari on October 27, 2008 [Doc. 119].

         On June 11, 2009, Petitioner filed a motion to vacate, set aside, or correct his conviction and sentence under § 2255 [Doc. 122]. This Court denied that petition on the merits in a Memorandum Opinion and Judgment Order on September 17, 2012 [Docs. 154, 155]. On June 26, 2015, the Supreme Court decided Johnson, which held that the residual provision of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), was unconstitutionally vague. Petitioner sought and obtained authorization from the Sixth Circuit to submit a successive § 2255 petition challenging his career offender designation based on that newly-issued decision [Doc. 167].

         On May 26, 2016, Petitioner field the instant pro se motion under § 2255 [Doc. 169]. During pendency of the motion, Petitioner filed numerous supplements [Docs. 171, 175, 182]. As supplemented, the § 2255 motion includes the following grounds for relief: (1) the Johnson decision removed facilitation of second-degree murder and aggravated assault from Section 4B1.2's definition of “crime of violence” and, without those convictions, Petitioner lacks sufficient predicates for career offender enhancement; (2) Petitioner's enhanced sentence violates the Eight Amendment prohibition against cruel and unusual punishment because it exceeds the top of his unenhanced Guidelines range; and (3) Petitioner's career offender enhancement violates due process because it was imposed based on “inaccurate information” and false predicate offenses.

         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. 178].

         On March 24, 2017, the United States filed a motion to dismiss Petitioner's Johnson-based challenge in light of Beckles [Doc. 179]. Petitioner filed a motion to “proceed pro se” in response.

         On March 31, 2017, FDSET filed two motions: one asking to withdraw as appointed counsel under the Standing Order in light of Beckles [Doc. 181 (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. 180].

         II. RESOLUTION OF NON-DISPOSITIVE MOTIONS

         Because Beckles forecloses any possibility of Johnson-based relief, the request to withdraw [Doc. 181] 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. 180] will also be DENIED.

         While 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)). Petitioner filed the original petition on May 26, 2016 [Doc. 169]. At no point during the ten-month period leading up to the Beckles decision did Petitioner attempt to supplement his original claims with these yet-to-be-filed grounds for relief. In light of this unjustified delay, an extension would be inappropriate.

         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 filed a motion to “proceed pro se” in which he concedes that Beckles forecloses Johnson-based relief from his career offender enhancement, but requests that the Court “still address [his] other two issues, ” i.e., the “Eighth Amendment” and “due process” claims [Docs. 182, 184]. The Court interprets Petitioner's concession on the impact of Beckles as a waiver of opposition to dismissal of his Johnson-based claim. 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 ...


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