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Dunlap v. United States

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

March 2, 2018

HORACE LEE DUNLAP, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM

          ALETA A. TRAUGER U.S. 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 (Docket No. 1), [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 DISMISSED.

         II. Procedural Background

         The 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.

         III. Analysis

         A. 28 U.S.C. § 2255

         The 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 the sentence.

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 Cir. 2003)).

         If a 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.'” Id.

         Having 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.

         B. Johnson v. United States

         The 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 ...


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