United States District Court, W.D. Tennessee, Eastern Division
ORDER PARTIALLY DENYING MOTION PURSUANT TO 28 U.S.C.
§ 2255 AND DIRECTING UNITED STATES TO RESPOND
D. TODD UNITED STATES DISTRICT JUDGE.
the Court is a pro se motion pursuant to 28 U.S.C.
§ 2255 filed by the Movant, Rodney Bates. At the time he
filed the § 2255 motion, Bates was incarcerated at the
Federal Correctional Complex Low in Yazoo City, Mississippi.
March 20, 2006, a federal grand jury returned a one-count
superseding indictment charging Bates with possession of
“crack” cocaine with intent to distribute, in
violation of 21 U.S.C. § 841(a). (No. 06-10017, Crim.
ECF No. 1.) He entered a guilty plea on May 11, 2006
(id., Crim. ECF Nos. 17 & 20), pursuant to a
written plea agreement (id., Crim. ECF No. 19). At a
hearing on August 10, 2006, the Court sentenced Bates to a
188-month term of imprisonment, to be followed by four years
of supervised release. (Id., Crim. ECF No. 23.)
Judgment was entered on August 14, 2006. (Id., Crim.
ECF No. 25.) Pursuant to an appeal waiver in the plea
agreement (id., Crim. ECF No. 19 at 2-3), no direct
appeal was filed at that time.
subsequently filed a motion for reduction of his sentence
after passage of the Fair Sentencing Act of 2010, Pub. L. No.
111-220, 124 Stat. 2372 (Aug. 3, 2010), pursuant to which the
U.S. Sentencing Commission amended the sentencing guidelines
applicable to certain drug offenses. (No. 06-10017, Crim. ECF
No. 27.) The Court denied that motion on May 16, 2014.
(Id., Crim. ECF No. 30.) Bates filed a second
pro se motion to reduce sentence in accordance with
the Sentencing Commission's further amendment of the
guidelines in 2014. (Id., Crim. ECF No. 31.) That
motion also was denied. (Id., Crim. ECF No. 41.) On
December 3, 2015, Bates filed a notice of appeal from the
criminal judgment that had been entered in August 2006.
(Id., Crim. ECF No. 37.) The Sixth Circuit dismissed
the appeal as untimely. United States v. Bates, No.
15-6340 (6th Cir. Dec. 18, 2015).
29, 2016, the Clerk received and docketed Bates's pro
se § 2255 motion, in which he raises the following
1. Whether his attorney rendered ineffective assistance, in
violation of the Sixth Amendment, in failing to file a direct
appeal after being requested to do so;
2. Whether his attorney rendered ineffective assistance, in
violation of the Sixth Amendment, in failing to challenge, at
sentencing, the use of two of Bates's prior offenses to
erroneously qualify him as a career offender under U.S.S.G.
3. Whether Johnson v. United States, 135 S.Ct. 2551
(2015), applies to the “residual clause” of the
career offender guideline, U.S.S.G. § 4B1.2; and
4. Whether his attorney rendered ineffective assistance, in
violation of the Sixth Amendment, in failing to challenge his
sentence under the Fair Sentencing Act.
(ECF No. 1 at 4-8.)
December 19, 2016, President Barack Obama granted Bates
executive clemency, commuting his sentence so that it would
expire on July 31, 2017, but leaving in place the four-year
period of supervised release. (No. 06-100176, Crim. ECF No.
46 at 2.) Therefore, Bates has now been released from prison.
He has not provided the Court with any new address, and his
current whereabouts are unknown.
to 28 U.S.C. § 2255(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
prisoner seeking relief under 28 U.S.C. § 2255 must
allege either (1) an error of constitutional magnitude; (2) a
sentence imposed outside the statutory limits; or (3) an
error of fact or law that was so fundamental as to render the
entire proceeding invalid.” Short v. ...