United States District Court, E.D. Tennessee, Winchester
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE.
the Court is the United States' 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. 36]. Petitioner submitted the petition on June 6, 2016
[Doc. 31]. In it, he: (1) 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sentence is no longer valid because the Guidelines residual
provision is equally vague)]; and (2) argues that counsel was
constitutionally defective because he did not object to the
same at sentencing [Id.].
2007, Petitioner pled guilty to two counts of distributing
cocaine base, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C) [Presentence Investigation Report (PSR)
¶¶ 1-3; Docs. 14-18]. Based on six prior Tennessee
convictions for drug-trafficking [PSR ¶¶ 38-40, 42,
45, 47], the United States Probation Office deemed Petitioner
to be a career offender [Id. ¶¶ 27, 73].
In accordance with that designation, this Court sentenced
Petitioner to 188 months' imprisonment [Doc. 23].
Petitioner appealed, but the Sixth Circuit affirmed his
conviction, career offender designation, and sentence on July
31, 2008 [Doc. 29]. Petitioner did not seek a writ of
Supreme Court decided Johnson on June 26, 2015. Less
than one year later-on June 6, 2016, Petitioner filed the
instant petition challenging his career offender designation
based on that decision [Doc. 31]. The United States responded
in opposition to the petition on February 21, 2017 [Doc. 34];
Petitioner did not reply in the time allowed for doing so.
E.D. Tenn. L.R. 7.1, 7.2.
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 28, 2017, the United States filed the instant motion to
dismiss Petitioner's collateral challenge to his career
offender designation in light of Beckles [Doc. 36].
MOTION TO DENY AND DISMISS WITH PREJUDICE
4B1.1 enhances a defendant's offense level if he or she
qualifies as a “career offender, ” i.e., adult
defendant whose offense of conviction is a “crime of
violence or controlled substance offense” and who has
“at least two prior felony convictions of either a
crime of violence or a controlled substance offense.”
U.S. Sentencing Manual § 4B1.1(a). “Crime of
violence” under the Guidelines 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 as well
as a nearly identical enumerated-offense clause).
United States filed the motion to deny and dismiss
Petitioner's collateral in light of Beckles on
March 28, 2016 [Doc. 36]. Petitioner has not filed a response
and the time for doing so has now passed [Doc. 38]. 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.
PETITION FOR COLLATERAL RELIEF
Petitioner had objected to the United States' motion to
deny and dismiss, the petition would fail as a matter of law.
Standard of Review
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).
Career Offender ...