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Donaldson v. United States

United States District Court, E.D. Tennessee, Winchester

May 5, 2017

ROBERT LEE DONALDSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          HARRY S. MATTICE, JR. UNITED STATES DISTRICT JUDGE.

         Before the Court is Petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 33].[1] The United States responded in opposition on July 29, 2016 [Doc. 36]; Petitioner replied in turn on August 4, 2016 [Doc. 37]. Recently, the United States filed a motion to deny and dismiss the petition based on an intervening decision of the Supreme Court [Doc. 39]. Petitioner did not respond in opposition to dismissal and the time for doing so has passed [Docs. 38, 41]. For the reasons below, the motion to deny and dismiss [Doc. 39] will be GRANTED and the petition [Doc. 33] will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In 2013, Petitioner pled guilty to possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1), which subjected him to a statutory penalty range of up to ten years' imprisonment under 18 U.S.C. § 924(a)(2) [Doc. 14]. He went on to “knowingly and voluntarily waive the right to file any motions or pleadings pursuant to 28 U.S.C. § 2255, ” except for claims of ineffective assistance of counsel or prosecutorial misconduct [Id. ¶ 11(b)].

         Based on a prior Tennessee conviction for aggravated burglary, the United States Probation Office enhanced Petitioner's offense level under Section 2K2.1(a)(4)(A) of the United States Sentencing Guidelines with a corresponding Guideline range of 63 to 78 months' imprisonment [Presentence Investigation Report (PSR) ¶¶ 11, 18-19, 55]. On July 16, 2013, this Court sentenced Petitioner to 70 months' imprisonment [Doc. 27]. No direct appeal was taken and Petitioner's conviction became final on July 30, 2013, at expiration of time to file an appeal. See Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004) (an unappealed judgment of conviction becomes final when the fourteen-day period for filing a direct appeal has elapsed).

         The United States Supreme Court decided Johnson v. United States-invalidating the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)-on June 26, 2015. 135 S.Ct. 2551 (2015). Petitioner filed the instant petition for collateral relief less than one year later on June 20, 2016 [Doc. 33 (challenging his base offense level enhancement)].

         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. 38]. On March 28, 2017, the United States filed a motion to dismiss Petitioner's Johnson-based challenge in light of Beckles [Doc. 39]. Petitioner did not file a response in opposition to dismissal.

         I. 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 base offense level enhancement in light of Beckles. Petitioner requested and this Court granted a two-week extension of time in which to respond [Docs. 38, 40, 41]. The time for doing so has now passed and this Court interprets the absence of any such 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”).

         For the reasons discussed in detail below, the motion [Doc. 39] will be GRANTED

         II. STANDARD OF REVIEW

         The relief authorized by 28 U.S.C. § 2255 “does not encompass all claimed errors in conviction and sentencing.” United States v. Addonizio, 442 U.S. 178, 185 (1979). Rather, a petitioner must demonstrate “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law . . . so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). He “must clear a significantly higher hurdle than would exist on direct appeal” and establish a “fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process.” Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998).

         III. ANALYSIS

         Petitioner articulates a single ground for relief, arguing that Johnson removed aggravated burglary from Section 4B1.2's definition of “crime of violence” and that, without that conviction, he lacks sufficient predicate offenses for enhancement [Doc. 33].[2] The United States opposes relief for two reasons: Petitioner waived the right to collaterally challenge his sentence in his plea agreement; and regardless, ...


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