United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGER U.S. 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 (Docket No. 1),  the Government's Response
(Docket No. 9), and the Petitioner's Reply (Docket No.
12). For the reasons set forth herein, the Petitioner's
Motion To Vacate (Docket No. 1) is DENIED, and this action is
Petitioner was convicted, after a jury trial held before
now-retired Judge Thomas A. Higgins, of two counts of
unlawful possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). (Docket Nos. 41, 42
in No. 3:95cr00098); United States v. Dunlap, 134
F.3d 372 (6th Cir. 1998). Prior to sentencing, the
Government moved for an upward departure from the Sentencing
Guidelines to a sentence of life imprisonment, and Judge
Higgins placed the parties on notice that he was
contemplating such a sentence. (Docket Nos. 47, 49 in No.
3:95cr00098); Id. At the subsequent sentencing
hearing, Judge Higgins sentenced the Petitioner to life
imprisonment on each count, to run concurrently. (Docket No.
54 in No. 3:95cr00098); Id. On appeal, the Sixth
Circuit affirmed both the Petitioner's convictions and
sentence. (Docket No. 69 in No. 3:95cr00098); Id.
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
an evidentiary hearing because the records conclusively
establish that the Petitioner is not entitled to relief on
the issues raised.
Johnson v. United States
Petitioner requests that the court apply the decision in
Johnson v. United States, U.S.___, 135 S.Ct. 2551,
192 L.Ed.2d 569 (2015) to reduce his sentence. In
Johnson, the Supreme Court held that the so-called
“residual clause” of the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e), is
unconstitutionally vague. The ACCA imposes a 15-year
mandatory minimum sentence for defendants convicted of
certain firearms offenses who have three previous convictions
for a “violent felony” or a “serious drug