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Hardin v. United States

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

May 11, 2017

GREGORY L. HARDIN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          J. RONNIE GREER UNITED STATES DISTRICT JUDGE

         Before the Court is the United States's motion to deny and dismiss Petitioner's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 629]. Petitioner submitted the § 2255 petition on March 18, 2016 [Doc. 605]. 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 (ACCA), 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 (suggesting that his sentence is no longer valid because the residual clause in Section 4B1.2 is equally vague)].

         I. BACKGROUND

         In 2010, Petitioner pled guilty to conspiring to distribute at least five grams of cocaine base (“crack”), in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(B) [Docs. 308, 309]. He “knowingly and voluntarily agree[d] to waive any rights he m[ight] have to file any post-conviction motions or pleadings pursuant to . . . [§] 2255, ” except for petitions raising claims of “ineffective assistance of counsel and prosecutorial misconduct” [Doc. 308 ¶ 14].

         Because Petitioner had a prior federal drug conviction, he faced an enhanced statutory penalty range of ten years up to life imprisonment [Id. ¶ 2; Presentence Investigation Report (PSR) ¶¶ 35, 36]. Based on that same drug conviction and a prior Tennessee conviction for attempted second-degree murder [PSR ¶¶ 34, 35], the United States Probation Office deemed Petitioner to be a career offender [Id. ¶ 28]. In accordance with that designation, this Court imposed a 262-month sentence [Doc. 407]. Petitioner appealed, but the Sixth Circuit affirmed his conviction and sentence [Doc. 443]. The Supreme Court denied a writ of certiorari on June 29, 2007 [Doc. 468].

         Over eight-and-a-half years later-on March 18, 2016, Petitioner filed the instant § 2255 motion requesting sentencing relief under Johnson [Doc. 605 (challenging career offender status)]. The United States responded in opposition [Doc. 616]; Petitioner replied in turn [Doc. 617].

         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. 628].

         On March 27, 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. 629], and, on April 7, 2017, Federal Defender Services of Eastern Tennessee (FDSET) filed a motion to withdraw as counsel [Doc. 632 (explaining that counsel cannot further pursue a motion to vacate under Johnson according to the limited appointment authorization provided by the Standing Order)].[1] Petitioner filed a pro se response in opposition to the motion to deny and dismiss [Doc. 631]. In that response, Petitioner argues the following: Beckles does not foreclose the requested Johnson-based relief because he was sentenced prior to United States v. Booker, 543 U.S. 220 (2005), i.e., under the mandatory Guidelines, and the Supreme Court expressly limited its holding in Beckles to the post-Booker advisory Guidelines; the residual clause of the mandatory guidelines is unconstitutionally vague for the same reasons as the ACCA provision; and, as a result, his prior conviction for attempted second-degree murder no longer qualifies as a crime of violence [Id.].

         II. REQUEST TO WITHDRAW

         Because Beckles forecloses any possibility of Johnson-based relief, the request to withdraw [Doc. 632] will be GRANTED and counsel will be relieved of her duties under the Standing Order.

         III. DISPOSITIVE MOTION AND § 2255 PETITION

         As previously discussed, the instant petition contains a single ground for collateral relief: Johnson invalidated the residual provision of the pre-Booker mandatory Guidelines, Petitioner's prior Tennessee conviction for attempted second-degree murder only qualified as a crime of violence under that now-defunct clause, and he lacks sufficient predicates for career offender enhancement without it [Docs. 605, 631]. The United States opposes collateral relief for two reasons: (1) attempted second-degree murder remains a crime of violence under the enumerated- offense and use-of-physical-force clauses [Doc. 616]; and (2) Beckles forecloses relief [Doc. 629]. Because this Court agrees with the former, it need not determine whether Beckles holding regarding the post-Booker advisory Guidelines applies to the pre-Booker mandatory Guidelines.

         A. 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 ...


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