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.
54]. Petitioner submitted the relevant § 2255 petition
on December 22, 2016 [Doc. 47]. 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 (suggesting that his sentence is no longer
valid because the residual clause in Section 4B1.2 is equally
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].
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].
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”).
RESOLUTION OF NON-DISPOSITIVE MOTIONS
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
DISPOSITIVE MOTION AND § 2255 PETITION
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.
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).