United States District Court, E.D. Tennessee, Greeneville
RONNIE GREER UNITED STATES DISTRICT JUDGE.
Andrew Foshia (“Petitioner”) has filed a pro se
motion to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255 [Doc. 120]. Petitioner was sentenced
in August 26, 2013, to 180 months' imprisonment for his
methamphetamine-conspiracy conviction, a violation of 21
U.S.C. §§ 846 and 841(b)(1)(B), and for his
felon-in-possession-of-a-firearm conviction, a violation of
18 U.S.C. § 922(g) [Doc. 56]. Petitioner brought a prior
successful § 2255 motion, No. 2:15-CV-168 [Doc. 77],
resulting in his 180-month sentence being vacated [Doc. 100].
The prior motion to vacate relied on Johnson v. United
States, 135 S.Ct. 2551 (2015), in which the Supreme
Court held that the residual clause of the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e),  was
unconstitutionally vague [Id.]. On October 6, 2016,
the Court resentenced Petitioner to a Guidelines, i.e.,
non-ACCA, sentence of 115 months' confinement [Doc. 112].
Petitioner's resentencing led to a new judgment, the
instant § 2255 motion is his first challenge to that
judgment and not a second or successive motion that, under 28
U.S.C. § 2244(b), requires authorization by the Sixth
Circuit. See Magwood v. Patterson, 561 U.S. 320, 331
(2010) (where a resentencing leads to a new judgment, a state
prisoner's § 2254 petition challenging that new
judgment is the first § 2254 application, not a second
or successive one); Ajan v. United States, 731 F.3d
629, 631 (6th Cir. 2013) (finding that the Magwood
rule “applies with equal force to § 2255-which
provides collateral relief from federal criminal
judgments”); Lang v. United States, 474 F.3d
348, 351-53 (6th Cir. 2007) (explaining that a § 2255
motion to vacate, which is the first such motion following a
resentencing, is not “second or successive” where
it advances claims that “originate[d] at resentencing
and could not have been challenged at the original sentencing
bases his present motion on the decisions in Mathis v.
United States, 136 S.Ct. 2243 (2016), and United
States v. Stitt, 860 F.3d 854 (6th Cir. 2017), both of
which involved sentencing under the ACCA [Doc. 120]. As
relevant to Petitioner's claim, Stitt held that
a Tennessee conviction of aggravated burglary does not
constitute a violent felony offense for purposes of the ACCA
maintains Mathis and Stitt support his
arguments that his aggravated burglary conviction no longer
qualifies as a predicate conviction to determine his base
offense level under USSG § 2K2.1 and, thus, that this
conviction cannot be used to calculate his Guidelines
sentence [Id. at 1]. Petitioner argues that, absent
the aggravated burglary conviction, his base offense level is
lower, given that only his prior conviction for burglary of a
storage building can be used to determine his base level
offense [Id. at 3]. Petitioner necessarily is
advancing a theory that Mathis and
Stitt's holdings regarding ACCA sentencing
likewise apply to non-ACCA Guidelines sentencing and render
the 115-month sentence issued at his resentencing invalid.
reasons below, the United States will not be required to
respond to this motion and it will be dismissed sua
obtain relief under 28 U.S.C. § 2255, 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).
argument that the holdings in Mathis and
Stitt undermine his § 2K2.1 enhancement is
foreclosed by the decision in Beckles v. United
States, 137 S.Ct. 886, 894 (2017) (holding that the
Guidelines are “not amenable to vagueness
challenges”). Because Petitioner's motion to vacate
presents no legal grounds to sustain it, he has failed to
demonstrate what he must to obtain § 2255 relief.
Accordingly, the motion will be dismissed sua sponte
as without merit.
under 28 U.S.C. § 2253(c)(2), the Court must determine
whether a certificate of appealability should be granted. A
certificate should issue if petitioner has made a
“substantial showing of a denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). To be entitled to
a certificate on a claim dismissed on the merits,
“[t]he petitioner must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Id.
reasonable jurists could not disagree with the resolution of
the claim and could not conclude that it is “adequate
to deserve encouragement proceed further, ”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003), the
Court will DENY issuance of a certificate of appealability.
28 U.S.C. § 2253; Fed. R. App. P. 22(b).
APPROPRIATE ORDER WILL ENTER.
 Under the ACCA, a defendant, such as
Petitioner, convicted of a § 922(g) offense who has
three prior convictions for violent felonies or serious
controlled substance offenses is subject to a mandatory