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 Motion To Vacate,
Set Aside, Or Correct Sentence In Accordance With 28 U.S.C.
§ 2255 (Doc. No. 1), the Petitioner's Supplemental
Brief (Doc. No. 5), and the Government's Response (Doc.
Order entered on November 18, 2016 (Doc. No. 11), now-retired
Judge Todd J. Campbell granted the Government's request
to hold this case in abeyance pending the Sixth Circuit's
decision in United States v. Stitt, 646 F.App'x
454 (6th Cir. 2016). The case was subsequently
randomly reassigned to the undersigned Judge. On June 27,
2017, the Sixth Circuit issued its en banc decision
in United States v. Stitt, 860 F.3d 854 (6th Cir.
2017). Accordingly, this case is ripe for decision.
reasons set forth herein, the Petitioner's Motion To
Vacate, Set Aside, Or Correct Sentence In Accordance With 28
U.S.C. § 2255 (Doc. No. 1) is GRANTED. The re-sentencing
hearing is set by separate order in Criminal Case No.
Procedural and Factual Background
underlying criminal case, the Petitioner pled guilty to
unlawful possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924. (Doc.
Nos. 26, 27 in Case No. 3:09cr00177). Through the Plea
Agreement, the Petitioner acknowledged that he had three
prior Tennessee convictions for aggravated burglary, and that
as an Armed Career Criminal, his advisory sentencing
guidelines range was 188 to 235 months of imprisonment. (Doc.
No. 27, at 10, in Case No. 3:09cr00177). The parties agreed
to a 188-month sentence. (Id., at 11-12). At the
subsequent sentencing hearing on May 28, 2010, Judge Campbell
imposed the agreed 188-month sentence. (Doc. Nos. 31, 33, 34
in Case No. 3:09cr00177). The record reveals that no appeal
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 ...