United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGER, U.S. DISTRICT JUDGE
before the court is the Petitioner's pro se
Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or
Correct Sentence. (Docket Nos. 1, 2); a Supplemental Brief
(Docket No. 9), filed by counsel for the Petitioner; and the
Government's Response (Docket No. 19).
Order entered November 4, 2016 (Docket No. 14), the court
granted the Government's request to hold this case in
abeyance pending the Sixth Circuit's decision in
United States v. Stitt, 646 Fed.App'x 454
(6th Cir. 2016). An en banc panel of the
Sixth Circuit issued its decision in United States v.
Stitt, 860 F.3d 854 (6th Cir. 2017) on June 27, 2017.
Thus, the Petitioner's claims are ripe for decision.
reasons set forth herein, the Petitioner's Motion Under
28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct
Sentence. (Docket Nos. 1, 2) is GRANTED. The Petitioner will
be re-sentenced by separate order in Criminal Case No.
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. (Docket Nos. 35, 36 in Case No.
3:12cr00172). The Petitioner's guilty plea was not the
result of a plea agreement. At the subsequent sentencing
hearing, on November 10, 2014, the court determined that the
Petitioner qualified as an Armed Career Criminal and
sentenced him to 180 months of imprisonment. (Docket Nos. 58,
60, 61 in Case No. 3:12cr00172). The record indicates that no
appeal was taken.
28 U.S.C. § 2255
Petitioner has brought this action pursuant to 28 U.S.C.
§ 2255. Section 2255 provides a statutory mechanism for
challenging the imposition of a federal sentence:
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
28 U.S.C. § 2255(a). In order to obtain relief under
Section 2255, a petitioner “‘must demonstrate the
existence of an error of constitutional magnitude which had a
substantial and injurious effect or influence on the guilty
plea or the jury's verdict.'” Humphress v.
United States, 398 F.3d 855, 858 (6th Cir. 2005)(quoting
Griffin v. United States, 330 F.3d 733, 736 (6th
factual dispute arises in a § 2255 proceeding, the court
is to hold an evidentiary hearing to resolve the dispute.
Ray v. United States, 721 F.3d 758, 761 (6th Cir.
2013). An evidentiary hearing is not required, however, if
the record conclusively shows that the petitioner is not
entitled to relief. 28 U.S.C. § 2255(b); Ray,
721 F.3d at 761; Arredondo v. United States, 178
F.3d 778, 782 (6th Cir. 1999). A hearing is also
unnecessary “if the petitioner's allegations
‘cannot be accepted as true because they are
contradicted by the record, inherently incredible, or
conclusions rather than statements of fact.'”
reviewed the pleadings, briefs, and records filed in the
Petitioner's underlying criminal case, as well as the
filings in this case, the court finds it unnecessary to hold