United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING § 2255 MOTION, DENYING CERTIFICATE
OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA
DANIEL BREEN, UNITED STATES DISTRICT JUDGE.
September 2015, Petitioner, Bobby Wayne Lee, filed a pro
se motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255 (“Petition”). (Case
Number (“No.”) 15-cv-1233, Docket Entry
(“D.E.”) 1.) For the reasons that follow, the
Petition is DENIED.
indicted in December 2008 on two counts of distributing
cocaine base in violation of 21 U.S.C. § 841(a)(1). (No.
08-cr-10131, D.E. 4 at PageID 5-6.) He subsequently entered a
plea of guilty to the second count, (id., D.E. 24;
id., D.E. 23), and the first count was dismissed,
(id., D.E. 48).
was determined to be subject to an enhanced sentence as a
career offender under § 4B1.1 of the United States
Sentencing Guidelines (“U.S.S.G.” or
“Guidelines”), based on two Tennessee convictions
for aggravated assault. (Presentence Report ¶¶ 18,
28, 30; No. 08-cr-10131, D.E. 61 at PageID 109.) On February
16, 2010, he was sentenced to 130 months' imprisonment
and four years of supervised release. (No. 08-cr-10131, D.E.
federal Petition, the inmate seeks relief pursuant to
Johnson v. United States, 135 S.Ct. 2551 (2015).
(No. 15-cv-01233, D.E. 1 at PageID 4.) He argues that
Johnson renders unconstitutional his designation as
a career offender under § 4B1.1 of the Guidelines.
released from prison in May 2017. (See No.
08-cr-10131, D.E. 74 at PageID 147.) Although currently on
supervised release, (see id.), he has not notified
the Court of his change of address.
a party's most basic responsibility is to keep the Court
apprised of his whereabouts, Petitioner's failure to do
so in this case is reason enough to deny the Petition. Even
if considered on the merits, however, the Petition fails. On
March 6, 2017, the Supreme Court refused to extend
Johnson's reasoning to the Guidelines'
career offender provisions. See Beckles v. United
States, 137 S.Ct. 886, 892 (2017).
the Petition is DENIED.
§ 2255 petitioner may not proceed on appeal unless a
district or circuit judge issues a certificate of
appealability (“COA”). 28 U.S.C. §
2253(c)(1); Fed. R. App. P. 22(b)(1). A COA may issue only if
the petitioner has made a substantial showing of the denial
of a constitutional right. 28 U.S.C. § 2253(c)(2)-(3). A
substantial showing is made when the petitioner demonstrates
that “reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented
were ‘adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000)). “If the petition was denied on procedural
grounds, the petitioner must show, ‘at least, that
jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.'” Dufresne v. Palmer,
876 F.3d 248, 253 (6th Cir. 2017) (quoting Slack,
529 U.S. at 484).
case, reasonable jurists would not debate the correctness of
the Court's decision to deny the Petition. Because any
appeal by Petitioner does not deserve attention, the Court
DENIES a certificate of appealability.
to Federal Rule of Appellate Procedure 24(a), a party seeking
pauper status on appeal must first file a motion in the
district court, along with a supporting affidavit. Fed. R.
App. P. 24(a). However, Rule 24(a) also provides that if the
district court certifies that an appeal would not be taken in
good faith, the prisoner must file his motion to proceed
in forma pauperis in the appellate court.
case, for the same reason it denies a COA, the Court
CERTIFIES, pursuant to Rule 24(a), that any appeal in this
matter would not be taken in good faith. Leave ...