United States District Court, E.D. Tennessee, Chattanooga
STEPHONE L. REED, Petitioner,
UNITED STATES OF AMERICA, Respondent.
L. COLLIER, UNITED STATES DISTRICT JUDGE.
the Court is Petitioner's pro se motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255 [Doc. 26]. He bases his request for collateral relief 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.].
Also before the Court is the United States' request for
an extension of time to file a response [Doc. 28], and
response in opposition filed during pendency of that motion
[Doc. 29]. Petitioner replied to the United States'
response on November 14, 2016 [Doc. 30]. For the reasons
below, the United States' request for an extension of
time [Doc. 28] will be GRANTED nunc pro tunc
and Petitioner's § 2255 motion [Doc. 26] will be
DENIED and DISMISSED WITH
2014, Petitioner pleaded guilty to aiding and abetting the
offenses of carjacking, in violation of 18 U.S.C. §
2119, and brandishing a firearm during and in relation to
that crime of violence, in violation of 18 U.S.C. §
924(c) [Doc. 24]. The United States Probation Office
calculated Petitioner's advisory Guideline range for the
carjacking offense as 51 to 63 months' imprisonment,
followed by a statutorily mandated 84 months'
imprisonment for the § 924(c) offense [Presentence
Investigation Report (PSR) ¶ 60]. On June 23, 2014, this
Court sentenced Petitioner to an aggregate term of 140
months' incarceration-56 months for the § 2119
offense and a consecutive 84 months for the § 924(c)
offense [Doc. 24]. On June 20, 2016, Petitioner filed the
instant collateral challenge based on the Johnson
decision [Doc. 26].
REQUEST FOR AN EXTENSION OF TIME TO RESPOND
addition to the pro se petition, the Court is in possession
of the United States' request for a thirty-day extension
of time to respond [Doc. 28]. The United States cites the
significant number of Johnson-based post-conviction
challenges and heavy caseload of the appellate division
responsible for responding to those petitions as
justification for the delay [Id.].
the thirty-day period requested, but before this Court could
rule on the proposed extension, the United States submitted a
response in opposition to collateral relief [Doc. 29]. For
good cause shown, the United States' request for an
extension will be GRANTED nunc pro tunc and
the response in opposition to relief it submitted on August
26, 2016 will be treated as timely.
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).
extent Petitioner argues that the Johnson decision
invalidated the residual clause in § 924(c)(3)(B)'s
definition of crime of violence and that the absence of that
provision requires vacatur of his conviction under §
924(c)(1)(A), the argument fails because binding Sixth
Circuit precedent holds that while Johnson
invalidated the residual provision of the ACCA, §
924(c)(3)(B)'s definition of crime of violence remains
unaffected. See United States v. Taylor, 814
F.3d 340, 376-79 (6th Cir. 2016) (recognizing at least four
“significant differences” between the residual
clause in § 924(c)(3)(B) and the ACCA's residual
clause and noting “the argument that Johnson
effectively invalidated [the former] is . . . without
merit”). As such, Petitioner's federal carjacking
conviction remains a crime of violence after the
reasons discussed above, the United States' request for
an extension of time to respond [Doc. 28] will be
GRANTED nunc pro tunc and Petitioner's
§ 2255 motion [Doc. 26] will be DENIED
and DISMISSED WITH PREJUDICE. The 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 Rule 24 of the Federal Rules of Appellate
Procedure. Petitioner having failed to make a substantial
showing of the denial of a constitutional right, a
certificate of appeal ability SHALL NOT
ISSUE. 28 U.S.C. § 2253; Rule 22(b) of the
Federal Rules of Appellate Procedure.