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Lee v. United States

United States District Court, M.D. Tennessee, Nashville Division

September 7, 2017

THOMAS EDWARD LEE, Petitioner
v.
UNITED STATES OF AMERICA Respondent.

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR CHIEF UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Pending 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. No. 13).

         By 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.

         For the 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. 3:09-cr-00177.

         II. Procedural and Factual Background

         In the 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 was filed.

         III. Analysis

         A. The Section 2255 Remedy

         28 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).

         In 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)).

         The 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 ...


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