United States District Court, E.D. Tennessee, Chattanooga
Christopher H. Steger Magistrate Judge.
R. MCDONOUGH UNITED STATES DISTRICT JUDGE.
the Court is Petitioner Johnny Alexander's pro
se motion to vacate, set aside, or correct his sentence
pursuant to Title 28, Section 2255 of the United States Code.
(Doc. 267.) For the following reasons, Petitioner's
motion will be DENIED.
1998, Petitioner pleaded guilty to one count of conspiracy to
manufacture methamphetamine, in violation of Title 21,
Sections 846 and 841(a)(1), (b)(1)(A). (Doc. 50.) The Court
subsequently sentenced Petitioner to 180 months'
imprisonment followed by a five-year term of supervised
release. (Doc. 153.) In March 2011, Petitioner finished his
term of imprisonment and began his five-year term of
supervised release. (See Doc. 240.)
April 2013, after violating the conditions of his supervised
release, the Court revoked Petitioner's supervised
release and sentenced him to eight months' imprisonment,
followed by four years of supervised release (the
“First Revocation”). (Doc. 250.) Petitioner did
not appeal the Court's revocation judgment. Petitioner
completed his term of imprisonment and began serving his
four-year term of supervised release in January 2014.
(See Doc. 258.)
2016, Petitioner appeared before the Court after again
violating the conditions of his supervised release (the
“Second Revocation”). At his revocation hearing,
Petitioner argued that his violation should be considered a
“Grade C” violation, rather than a “Grade
A” violation. (See May 9, 2016 Hr'g. Tr.)
The Court agreed and calculated Petitioner's guidelines
range as eight to fourteen months' imprisonment.
(Id.) The Court nonetheless sentenced Petitioner to
an above-guidelines sentence of thirty months'
imprisonment followed by no term of supervised release. (Doc.
265.) Petitioner did not appeal the Court's revocation
29, 2016, Petitioner filed a motion to vacate, set aside, or
correct his revocation sentence pursuant to Title 28, Section
2255 of the United States Code. (Doc. 267.) In his motion,
Petitioner argues that the Court's revocation sentence
was unlawful because the “Court did not apply the ex
p[o]st facto clause of old USSG§ when resentencing to a
term of 30 months, ” and because the Court did not
credit him for the time he previously served on supervised
release. (Doc. 267, at 5; Doc. 268, at 3-4.) On September 2,
2016, Petitioner filed a motion to amend his § 2255
motion, which the Court granted. (Docs. 269, 272.) In the
Court's order granting Petitioner's motion to amend,
it instructed Petitioner to file an amended pleading within
twenty days. (Doc. 272, at 2.) The Court also notified
Petitioner that, if he did not file an amended pleading
within twenty days, it would “look to his originally
filed motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255.” (Id.) To
date, Petitioner has not filed an amended pleading.
STANDARD OF LAW
obtain relief under 28 U.S.C. § 2255, a petitioner must
demonstrate “(1) an error of constitutional magnitude;
(2) a sentence imposed outside the statutory limits; or (3)
an error of fact or law . . . so fundamental as to render the
entire proceeding invalid.” Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting
Mallett v. United States, 334 F.3d 491, 496-97 (6th
Cir. 2003)). He “must clear a significantly higher
hurdle than would exist on direct appeal” and establish
a “fundamental defect in the proceedings which
necessarily results in a complete miscarriage of justice or
an egregious error violative of due process.” Fair
v. United States, 157 F.3d 427, 430 (6th Cir. 1998).
not entirely clear, it appears that Petitioner contends the
Court's revocation sentences: (1) exceed the maximum
sentences permitted under applicable law; and (2) violate the
Ex Post Facto clause of the United States Constitution.
(See Docs. 267, 268.) In his motion, Petitioner
argues that any term of imprisonment or any additional term
of supervised release imposed in connection with revocation
of his supervised release should have been limited by the
five-year term of supervised release imposed in connection
with his original conviction, with him receiving credit
against the five-year term for time previously served on
supervised release or in custody. (Doc. 268, at 3)
Specifically, Petitioner contends that, based on time
previously served on supervised release or in custody, the
Court erred by: (1) imposing a term of supervised release
exceeding twenty-eight months in connection with his First
Revocation; and (2) imposing a term of incarceration
exceeding twenty months in connection with his Second
Revocation. (Id. at 2.)
initial matter, Petitioner's challenges to the
Court's sentencings are procedurally defaulted.
Petitioner did not directly appeal the Court's
calculation, duration, or legality of his sentences.
Accordingly, to obtain review of these sentences in
connection with a motion made pursuant to Title 28, Section
2255 of the United States Code, Petitioner must demonstrate
good cause for not raising this argument on direct appeal and
that actual prejudice will result if not reviewed. Elzy
v. United States, 205 F.3d 882, 884 (6th Cir. 2000).
Petitioner has made no such showing and, thus, his challenges
to the Court's sentences are procedurally defaulted.
See Id. at 885-86.
Petitioner's claims were not procedurally defaulted, he
is still not entitled to relief pursuant to Title 28, Section
2255 of the United States Code. First, Petitioner appears to
argue that the Court violated the Ex Post Facto clause of the
United States Constitution in the Second Revocation, because
it sentenced him under a version of the United States
Sentencing Guidelines providing a higher advisory sentencing
range. There is nothing to support Petitioner's
assertion. The guidelines in effect at the time of his
sentencing in connection with the Second Revocation (the 2016
version), at the time he committed the violation resulting in
the Court revoking his supervised release (the 2015 version),
and at the time of his original conviction (the 1997 version)
all provide a guidelines range of eight to fourteen
months' imprisonment for a Grade C violation.
(Compare U.S.S.G. § 7B1.4, Revocation Table,
Nov. 1997, Nov. 2015, & Nov. 2016). Accordingly,
Petitioner has not demonstrated ...