United States District Court, E.D. Tennessee
MELVIN E. DAVIS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE
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]. 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.
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].
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
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.
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].
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.
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].
RESOLUTION OF NON-DISPOSITIVE MOTIONS
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
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.
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 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 ...