United States District Court, E.D. Tennessee, Chattanooga
CHESTER L. HALFORD, JR., Petitioner,
UNITED STATES OF AMERICA, Respondent
K. Lee Magistrate Judge.
R. McDONOUGH UNITED STATES DISTRICT JUDGE.
the Court is the United States' motion to deny and
dismiss Petitioner's supplemented pro se motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255 (Doc. 44). Petitioner submitted the
petition on June 23, 2016 (Doc. 38 (original motion); Doc. 40
(amended motion)). In it, he challenges his enhancement under
Section 2K2.1 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sentence is no longer valid because the Guidelines residual
provision is equally vague)).
2015, Petitioner pled guilty to possessing ammunition 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)
(Presentence Investigation Report (PSR) ¶¶ 1-2,
49). Based on two prior Tennessee convictions for selling
cocaine (Id. ¶¶ 28, 30), the United States
Probation Office assigned Petitioner an enhanced base offense
level under Section 2K2.1(a)(2) (Id. ¶ 11). A
three-level reduction for acceptance of responsibility
(Id. ¶¶ 19-20), resulted in a total
offense level of twenty one, criminal history category of VI,
and advisory Guidelines range of 57 to 71 months'
imprisonment (Id. ¶¶ 21, 50). On May 14,
2015, this Court imposed a 62-month term of incarceration
(Doc. 34). Petitioner did not appeal and, as a result, his
conviction became final for purposes of § 2255(f)(1) on
May 28, 2015. See, e.g., Sanchez-Castellano v.
United States, 358 F.3d 424, 428 (6th Cir. 2004)
(explaining that an unappealed judgment of conviction becomes
final when the fourteen-day period for filing a direct appeal
Supreme Court decided Johnson on June 26, 2015. Less
than one year later-on June 17, 2016, Petitioner filed the
instant petition challenging his base offense level based on
The Guidelines set a general base offense level of fourteen
for violating 18 U.S.C. § 922(g). U.S. Sentencing Manual
§ 2K2.1(a)(6). For offenders with one prior conviction
for either a “crime of violence” or
“controlled substance offense, ” the base offense
level increases to twenty. U.S. Sentencing Manual §
2K2.1(a)(4). Offenders with two such convictions face a base
offense level of twenty-four. U.S. Sentencing Manual §
2K2.1(a)(2). “Controlled substance offense” is
defined as any offense “punishable by imprisonment for
a term exceeding one year, that prohibits the manufacture,
import, export, distribution, or dispensing of a controlled
substance . . . or the possession of controlled substance . .
. with intent to manufacture, import, export, distribute, or
dispense.” U.S. Sentencing Manual § 4B1.2(b).
“Crime of violence” is defined in an almost
identical manner as “violent felony” under the
ACCA. See U.S. Sentencing Manual § 4B1.2(a)
(adopting identical use-of-force and residual clauses and
similar enumerated-offense clause). that decision (Doc. 38).
Consistent with an Order of this Court, Petitioner amended
that original filing to comport with the Rules Governing
§ 2255 Proceedings on August 16, 2016 (Doc. 40). The
United States responded in opposition to collateral relief on
September 15, 2016 (Doc. 42).
October 12, 2016, Petitioner filed a pro se motion requesting
that this Court hold his petition in abeyance pending the
Supreme Court's resolution of two potentially dispositive
issues in Beckles v. United States, 137 S.Ct. 886
(2017). That motion remains pending before the Court.
March 6, 2017, the Supreme Court decided Beckles and
held in that decision that the United States Sentencing
Guidelines are “not amenable to vagueness
challenges.” Id. at 894. Shortly thereafter-on
March 30, 2017, the United States filed the instant motion to
dismiss Petitioner's challenge to his career offender
designation in light of Beckles (Doc. 44).
MOTION TO STAY PENDING BECKLES
the United States decided Beckles on March 6, 2017,
Petitioner's pro se request that this Court stay
resolution of his petition pending the same (Doc. 43) must be
denied as moot.
MOTION TO DENY AND DISMISS WITH PREJUDICE
United States filed the motion to deny and dismiss
Petitioner's collateral in light of Beckles on
March 30, 2016 (Doc. 44). Petitioner has not filed a response
and the time for doing so has now passed. E.D. Tenn. L.R.
7.1, 7.2. 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”). The
unopposed motion to dismiss will be granted.
Beckles forecloses Johnson-based collateral
relief from Guideline enhancements and because this Court
interprets Petitioner's failure to respond to the request
for dismissal as a waiver of opposition, the United
States' unopposed motion to deny and dismiss (Doc. 44)
will be GRANTED and Petitioner's supplemented petition
(Docs. 38, 40) will be DENIED and DISMISSED WITH PREJUDICE.
Petitioner's pro se request to stay resolution of the
petition pending Beckles (Doc. 43) will be DENIED as
moot. 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. ...