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Alexander v. United States

United States District Court, E.D. Tennessee, Chattanooga

March 6, 2018

JOHNNY ALEXANDER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          Christopher H. Steger Magistrate Judge.

          MEMORANDUM OPINION

          TRAVIS R. MCDONOUGH UNITED STATES DISTRICT JUDGE.

         Before 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.

         I. BACKGROUND

         In 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.)

         In 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.)

         In May 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 judgment.

         On July 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.[1] (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.

         II. STANDARD OF LAW

         To 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).

         III. ANALYSIS

         Although 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.)

         As an 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.

         Even if 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. ยง 7B1.4, Revocation Table, Nov. 1997, Nov. 2015, & Nov. 2016). Accordingly, Petitioner has not demonstrated ...


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