United States District Court, E.D. Tennessee
A. VARLAN CHIEF 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.
85]. Petitioner submitted the relevant § 2255 petition
on June 23, 2016 [Doc. 74]. In it, he challenges his
enhancement under Section 4B1.1 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 (suggesting that his sentence is no longer
valid because the residual provision in Section 4B1.2 is
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. 84].
March 36, 2017, the United States filed the instant motion to
dismiss Petitioner's Johnson-based challenge to
his career offender designation in light of Beckles
[Doc. 85]. Petitioner did not reply and the time for doing so
has now passed [Doc. 84]. This Court interprets the absence
of a response in opposition to dismissal 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
otherwise 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”).
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.
85] will be GRANTED and petition [Doc. 74] will be DENIED and
DISMISSED WITH PREJUDICE.
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 Defender Services of Eastern Tennessee
(FDSET) for the limited purpose of reviewing the case to
determine whether Petitioner was eligible for collateral
relief based on Johnson v. United States, 135 S.Ct.
2551 (2015). See E.D. Tenn. SO-16-02 (Feb. 11,
2016). After receiving notice of a conflict of interest, this
Court appointed substitute CJA counsel to fulfill FDSET's
duties under the Standing Order [Docs. 72, 73]. Consistent
with that appointment, counsel filed the instant petition
[Docs. 74, 75, 82].
 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.
Section 4B1.1 enhances a defendant's offense level
if he or she qualifies as a “career offender, ”
i.e., adult defendant whose offense of conviction is a
“crime of violence or controlled substance
offense” and who has “at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.” U.S. Sentencing Manual §
4B1.1(a). “Crime of violence” under the
Guidelines is defined in an almost identical manner as
“violent felony” under the ACCA. See
U.S. Sentencing ...