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Bivins v. United States

United States District Court, E.D. Tennessee

April 26, 2017

TYSON CHRISTOPHER BIVINS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          THOMAS A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE

         Before 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. 54]. Petitioner submitted the relevant § 2255 petition on December 22, 2016 [Doc. 47].[1] 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 (suggesting that his sentence is no longer valid because the residual clause in Section 4B1.2 is equally vague)].[2]

         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. 49].

         On March 23, 2017, FDSET filed two motions: one asking to withdraw as appointed counsel under the Standing Order in light of Beckles [Doc. 51 (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 a pro se supplement to the existing-petition [Doc. 50].

         On March 31, 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. 54]. Petitioner has not filed a response and the time for doing so has now passed [Doc. 49]. 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 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”).

         I. RESOLUTION OF NON-DISPOSITIVE MOTIONS

         Because Beckles forecloses any possibility of Johnson-based relief, the request to withdraw [Doc. 51] will be GRANTED and counsel will be relieved of her duties under the Standing Order. The request for an extension of time [Doc. 50] will be DENIED because Petitioner has had more than enough time to submit pro se arguments in support of his existing grounds or supplement the same with additional theories of collateral relief. The petition has been pending before this Court for four months and more than a month has passed since the Supreme Court decided Beckles. The Court finds that any additional extension of time would be inappropriate under the circumstances.

         II. DISPOSITIVE MOTION AND § 2255 PETITION

         To the extent that Petitioner challenges his career offender designation based on Johnson, that argument fails because the Guidelines are not subject to void for vagueness analysis. Beckles, 137 S.Ct. 894. Thus, Johnson does not provide a basis for granting the collateral relief requested.

         III. CONCLUSION

         For the 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. 54] will be GRANTED and Petitioner's successive § 2255 petition [Doc. 47] will be DENIED and DISMISSED WITH PREJUDICE. FDSET's motion to withdraw [Doc. 51] will be GRANTED and request for an extension of time [Doc. 50] 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).

         ORDER ACCORDINGLY.

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