United States District Court, M.D. Tennessee, Nashville Division
WAVERLY D. CRENSHAW, JR CHIEF UNITED STATES DISTRICT JUDGE.
before the Court are the Petitioner's pro se
Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or
Correct Sentence (Doc. No. 1); an Amended Motion To Vacate,
Set Aside, Or Correct Sentence In Accordance With 28 U.S.C.
§ 2255 (Doc. No. 7), filed by counsel for the
Petitioner; and the Government's Response (Doc. No. 8).
By Order entered July 18, 2016 (Doc. No. 9), now-retired
Judge John T. Nixon dismissed the Petitioner's claim
regarding the constitutionality of 18 U.S.C. §
924(c)(3)(B), and stayed the Petitioner's claim regarding
the sentence enhancement under Sentencing Guideline §
4B1.2 pending resolution of Beckles v. United
States, 136 S.Ct. 2510 (2016). The case was subsequently
randomly reassigned to the undersigned Judge.
March 6, 2017, the Supreme Court issued its decision in
Beckles v. United States, ___U.S.___, 137 S.Ct. 886,
891, 197 L.Ed.2d 145 (2017). The Petitioner's remaining
claim is now ripe for decision. For the reasons set forth
herein, the Petitioner's Motions (Doc. Nos. 1, 7) are
DENIED, and this action is DISMISSED.
Procedural and Factual Background
underlying criminal case, the Petitioner pled guilty, before
Judge Nixon, to participating in a conspiracy to commit Hobbs
Act robbery and extortion, in violation of 18 U.S.C. §
1951; and possessing a firearm in furtherance of a crime of
violence, in violation of 18 U.S.C. § 924(c). (Doc. Nos.
2223, 2304, 2305, 2943 in Case No. 3:09cr00240). Through the
Plea Agreement, the Government agreed to dismiss the two
remaining counts against the Petitioner, and the parties
contemplated cooperation by the Petitioner potentially
leading to a Government motion for a reduced sentence for
substantial assistance. (Id.) At the subsequent
sentencing hearing, on November 4, 2013, Judge Nixon granted
the Government's motion for a substantial assistance
reduction, and accepted the parties' recommendation that
the Petitioner be sentenced to a total term of 180 months of
imprisonment. (Doc. Nos. 2477, 2480, 2481, 2944 in Case No.
3:09cr00240). The record indicates that no appeal was taken.
The Section 2255 Remedy
U.S.C. Section 2255 provides federal prisoners with a
statutory mechanism by which to seek to have their sentence
vacated, set aside or corrected:
(a) A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to
vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a).
order to obtain relief under Section 2255, the petitioner
must demonstrate constitutional error that had a
“‘substantial and injurious effect or influence
on the guilty plea or the jury's verdict.'”
Hamblen v. United States, 591 F.3d 471, 473 (6th
Cir. 2009)(quoting Griffin v. United States, 330
F.3d 733, 736 (6th Cir. 2003)).
court should hold an evidentiary hearing in a Section 2255
proceeding where a factual dispute arises, unless the
petitioner's allegations “‘cannot be accepted
as true because they are contradicted by the record,
inherently incredible, or [are] conclusions rather than
statements of fact.'” Ray v. United
States, 721 F.3d 758, 761 (6th Cir. 2013)(quoting
Arredondo v. United States, 178 F.3d 778, 782
(6th Cir. 1999)). In addition, no hearing is
required where “the record conclusively shows that the
petitioner is entitled to no relief.”
Arredondo, 178 F.3d at 782 (quoting Blanton v.
United States, 94 F.3d 227, 235 (6th Cir.
1996)). See also Fifer v. United States, 660
Fed.Appx. 358, 359 (6th Cir. Aug. 22, 2016).
reviewed the pleadings, briefs and records filed in
Petitioner's underlying criminal case, as well as the
pleadings, briefs and records filed in this case, the Court
finds that it need not hold an evidentiary hearing in this
case to resolve the Petitioner's claims. The record
conclusively establishes ...