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Houston v. United States

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

June 5, 2017

ROCKY JOE HOUSTON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

         Before the Court is Petitioner's supplemented motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Docs. 272, 285, 287].[1] The United States responded in opposition on July 1, 2016 [Doc. 274]; Petitioner replied in turn on July 27, 2016 [Doc. 275], Recently, the United States filed a motion to deny and dismiss the petition based on an intervening decision of the Supreme Court [Doc. 284]. This Court is also in possession of three pro se motions-one "challenging ... the government's authority to arrest and to prosecute" [Doc. 247], one requesting leave to supplement the district court record [Doc. 249], and one requesting leave to supplement Petitioner's amended petition [Doc. 288]-and a motion from Federal Defender Services of Eastern Tennessee (FDSET) requesting to withdraw as counsel and a 60-day extension of time for the submission of additional pro se theories of collateral attack [Doc. 286]. For the reasons below, FDSET's motion [Id] will be GRANTED nunc pro tunc, Petitioner's pro se request for a second extension [Doc. 288] will be DENIED, the United States' motion to deny and dismiss [Doc. 284] will be GRANTED, and Petitioner's supplemented § 2255 motion [Docs. 272, 285, 287] will be DENIED and DISMISSED WITH PREJUDICE. Petitioner's pro se motions "challenging ... the government's authority to arrest and to prosecute" and requesting leave to supplement the record [Docs. 247, 249], will be DENIED.

         I. BACKGROUND

         In 2014, a jury convicted Petitioner of possessing a firearm as a convicted 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. 226 ¶¶ 3, 47]. Because Petitioner's offense involved a "semiautomatic firearm . . . capable of accepting a large capacity magazine" and Petitioner had a prior Tennessee conviction for felony evading arrest, the United States Probation Office (USPO) calculated his base offense level as twenty-two pursuant to Section 2K2.1(a)(3) of the United States Sentencing Guidelines [Id. ¶ 15]. A six-level enhancement for possessing at least twenty-five firearms resulted in a total offense level of twenty-eight [Id. ¶¶ 16, 23]. Because Petitioner had a criminal history category of II, the USPO assigned him an advisory Guidelines range of 87 to 108 months' imprisonment [Id. ¶¶ 29, 48]. On June 30, 2014, this Court sentenced Petitioner to 108 months' imprisonment, within and at the top of that range [Doc. 241]. Petitioner appealed, but the Sixth Circuit Court of Appeals affirmed his conviction and sentence on February 8, 2016. United States v. Houston, 813 F.3d 282 (6th Cir. 2016).

         Three months later-on May 23, 2016, Petitioner filed a timely § 2255 motion challenging his base offense level in light of Johnson v. United States, 135 S.Ct. 2551 (2015), which held that the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), was unconstitutionally vague [Doc. 272 (arguing that the Guidelines residual clause is equally vague)].[2]

         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) noting the holding in Beckles (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. 282], On March 26, 2017, the United States filed a motion to dismiss Petitioner's Johnson-based challenge in light of Beckles [Doc. 284]. Petitioner responded by filing a pro se supplement with two related theories for collateral relief: Petitioner's conviction under § 922(g)(1) must be vacated or set aside because his only prior felony conviction, and thus the conviction used to designate him a prohibited person, was obtained in violation of his rights to a speedy trial and counsel [Doc. 285], On March 31, 2017, appointed counsel requested that she be allowed to withdraw under the Standing Order in light of Beckles [Doc. 286 p. 1 (explaining that FDSET cannot further pursue a motion to vacate under Johnson according to the limited appointment authorization provided by the Standing Order)], and requesting that this Court grant Petitioner leave and a 60-day extension of time to file additional pro se grounds for collateral relief [Id. at 2 (reasoning that Petitioner should be given addition time to formulate and raise alternative challenges because his one year window for requesting post-conviction relief under § 2255(f)(1) has not yet lapsed)].

         On April 3, 2017, Petitioner filed an "amended motion to vacate [or] set aside [his conviction" [Doc. 287]. The amended petition (1) omits Petitioner's Johnson-based challenge- which he admits is foreclosed by Beckles, (2) incorporates the arguments for relief contained in Petitioner's pro se supplement, and (3) asserts a novel theory-counsel was ineffective because he failed to investigate problems with Petitioner's prior state conviction or challenge this Court's use of that same offense as a prior felony conviction for purposes of § 922(g)(1) [Id.].

         On April 17, 2017, Petitioner filed a pro se motion objecting to the United States's request for dismissal without prejudice [Doc. 288]. In it, he requests another 60-day extension of time so that he can submit two more grounds for relief: one alleging "ineffective assistance of counsel during the prosecution and sentencing;" and one arguing that his "felony conviction for evading arrest cannot qualify as a crime of violence independent of Johnson and Beckles" [Id.].

         II. REQUESTS TO WITHDRAW AS COUNSEL AND FOR LEAVE TO AMEND

         Because Beckles forecloses any possibility of Johnson-based relief, the request to withdraw will be GRANTED nunc pro tunc and counsel will be relieved of her duties under the Standing Order. FDSET's request for a 60-day extension to allow for the submission of additional pro se claims will also be GRANTED nunc pro tunc. That 60-day period expired on May 30, 2017.

         This Court is also in possession of Petitioner's pro se request for a second 60-day extension so that he can formulate even more challenges [Doc. 288]. If granted the extension, Petitioner suggests that he would collaterally attack his conviction and sentence by alleging unspecified instances of ineffective assistance of counsel and collaterally attack his base offense level by arguing that felony evading arrest is not a crime of violence regardless of Johnson and Beckles.

         Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend should "be freely given when justice so requires, " Fed.R.Civ.P. 15(a), but relevant factors include "undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment." Anderson v. Young Touchstone Co., 735 F.Supp.2d 831, 833 (W.D. Tenn. 2010) (quoting Formanv. Davis, 371 U.S. 178, 182(1965)). Because this Court finds that another extension would cause an undue delay in proceedings and because the only proposed ground that Petitioner has identified with specificity lacks merit, his request [Doc. 288] will be DENIED.

         FDSET filed the petition on May 23, 2016 [Doc. 272]. At no point during the ten-month period leading up to Beckles did Petitioner attempt to supplement that motion with additional or alternative grounds for relief. Further, he had three months after Beckles-60 days of that attributable to FDSET's requested extension-to submit alternative grounds for relief. Under these circumstances and in light of the significant extension already afforded, this Court finds that any additional delay in proceedings would be inappropriate. Regardless, the only claim identified with specificity lacks merit because binding precedent dictates that felony evading arrest qualifies as a crime of violence under the Guidelines residual provision. See, e.g., United States v. Doyle, 678 F.3d 429, 431-36 (6th Cir. 2016) (holding that Class E felony evading arrest in Tennessee was a violent felony under the ACCA residual clause); see also Beckles, 137 S.Ct. at 894 (holding that the Guidelines residual clause is "not amenable to vagueness challenges"); United States v. Ruvalcaba, 627 F.3d 218, 224 (6th Cir. 2010) ("Because both share essentially the same definition, we apply the same analysis to determine whether a crime is a violent felony under the [ACCA] and to determine whether a crime is a crime of violence under [Section 4B1.2 of] the Guidelines.").

         III. SUPPLEMENTED PETITION FOR COLLATERAL RELIEF

         A. ...


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