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Barajas v. United States

United States District Court, E.D. Tennessee

August 25, 2017

FRANCISCO BARAJAS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          CURTIS L. COLLIER UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 90]. He bases the request for 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 are the United States' two requests for an extension of time to file a response [Docs. 93, 95], the United States' response in opposition filed simultaneously with the latter motion [Doc. 94], and Petitioner's request for an extension of time to file a reply [Doc. 97]. For the reasons that follow, the United States' requests for an extension [Docs. 92, 95] will be GRANTED nunc pro tunc, Petitioner's motion for an extension [Doc. 97] will be DENIED as moot, and the § 2255 motion [Doc. 90] will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In 2014, Petitioner pleaded guilty to conspiring to distribute at least 500 grams of methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) [Doc. 44]. Based on the quantity of drugs, a two-level firearms enhancement, and a three-level enhancement for acceptance of responsibly, the United States Probation Office assigned Petitioner a total offense level of thirty-five with a corresponding Guideline range of 168 to 210 months' imprisonment [Presentence Investigation Report (PSR) ¶¶ 27, 32, 33, 39-41, 45, 58, 59]. The Court sentenced Petitioner to 169 months' imprisonment on December 3, 2014 [Doc. 44].

         Seven years later-on June 20, 2016-Petitioner submitted the instant motion seeking collateral relief in light of the Johnson decision [Doc. 90].

         II. REQUESTS FOR EXTENSION

         In addition to the pro se petition, the Court is in possession of the United States' two requests for an extension of time to respond [Docs. 93, 95]. The first requests leave to file a response on or before August 26, 2016, and the second-filed contemporaneously with the response in opposition-seeks an extension until September 6, 2016. The United States cites the significant number of Johnson-based post-conviction challenges, heavy caseload of the appellate division responsible for responding to those petitions, and fact that the same submitted sixty-five responses during the period between its requests as justifications for the delay [Id.]. 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 September 6, 2016 will be treated as timely.

         Petitioner filed a pro se request for an extension of time to reply on September 19, 2018 [Doc. 97]. In that request, he asks for “a thirty-day extension, up to and including October 10, 2016 in which to file [a reply]” [Id.]. More than five months have passed and Petitioner has still not filed a reply to the United States' response. As a result, his request will be DENIED as moot.

         III. STANDARD OF REVIEW

         The 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).

         IV. ANALYSIS

         Petitioner's argument that he no longer possesses predicate offenses sufficient for categorization as an armed career criminal under § 924(e), enhancement as a career-offender under Section 4B1.1 of the United States Sentencing Guidelines, or application of an enhanced base offense level under Section 2K2.1 of the same fails because the record conclusively demonstrates that he was never subjected to these provisions [PSR ¶¶ 27, 32, 33, 39-41, 45, 58, 59].[1]

         To the extent that Petitioner complains about a “career offender enhancement” allegedly based on a 1997 felony conviction [Doc. 91 pp. 4-8], there is no evidence of such an enhancement anywhere in Petitioner's PSR or CM/ECF record. To the extent Petitioner complains about the two-level firearms enhancement under Section 2D1.1(b)(1) [PSR ¶ 33], he has not provided any basis for the Court to question the propriety of its decision to apply that provision in his case.

         V. ...


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