United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING § 2255 MOTION IN PART, DENYING
MOTION FOR STATUS UPDATE, AND DIRECTING PETITIONER TO SHOW
DANIEL BREEN, UNITED STATES DISTRICT JUDGE
February 29, 2016, Petitioner, Sarah Leann Kelly, filed a
pro se motion to vacate, set aside, or correct her
sentence under 28 U.S.C. § 2255 (the
“Petition”). (Docket Entry (“D.E.”) 1.)
She filed a motion for a status update on June 5, 2017. (D.E.
8.) For the reasons that follow, the Petition is DENIED in
part, the motion is DENIED as moot, and Petitioner is ORDERED
TO SHOW CAUSE why her remaining claim should not be dismissed
24, 2013, a federal grand jury returned a two-count
indictment against Kelly, charging her with being a felon in
possession of a firearm in violation of 18 U.S.C.
§§ 922(g), 924(a), and 924(e). (No.
1:13-cr-10055-JDB-1, D.E. 2.) She subsequently entered a plea
of guilty to Count 1 of the indictment, (id., D.E.
36), and Count 2 was dismissed on the Government's
motion, (id., D.E. 44).
was determined to be subject to a base offense level of 24
under § 2K2.1 of the United States Sentencing Guidelines
(the “Guidelines” or “U.S.S.G.”)
based on two Tennessee convictions for aggravated burglary.
(Presentence Report ¶¶ 35, 36.) Section 2K2.1
provides, in pertinent part, that a defendant convicted of
being a felon in possession of a firearm who previously
“sustain[ed] at least two felony convictions of either
a crime of violence or a controlled substance offense”
is subject to an enhanced base offense level. U.S.S.G. §
Court sentenced her to 100 months' imprisonment and three
years of supervised release. (No. 1:13-cr-10055, D.E. 44.)
Judgment was entered on July 18, 2014. (Id., D.E.
prisoner seeking to vacate her sentence under § 2255
“must allege either (1) an error of constitutional
magnitude; (2) a sentence imposed outside the statutory
limits; or (3) an error of fact or law that was 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)) (internal
quotation marks omitted). The Petition presents two
constitutional claims: defense counsel provided ineffective
assistance by “fail[ing] to file a notice of appeal
after sentencing” (Claim 1) and the inmate's
sentence violates due process under the reasoning set forth
in Johnson v. United States, 135 S.Ct. 2551 (2015)
(Claim 2). (D.E. 1 at PageID 3-4.) The Court will address the
claims in reverse order.
challenges her sentence based on the United States Supreme
Court's ruling in Johnson that the residual
clause of the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e), is unconstitutionally void for
vagueness. See Johnson, 135 S.Ct. at 2557. She
asserts that Johnson renders this Court's
assignment of an enhanced base offense level under §
2K2.1 unconstitutional for the same reason.
argument fails. On March 6, 2017, the Supreme Court refused
to extend Johnson's reasoning to the Guidelines,
explaining that, “[u]nlike the ACCA, . . . the advisory
Guidelines do not fix the permissible range of
sentences.” See Beckles v. United States, 137
S.Ct. 886, 892 (2017). “[T]he Guidelines, ” thus
“are not subject to a vagueness challenge under the Due
Process Clause.” Id. Claim 2 is therefore
without merit. See, e.g., Sanderson v. United
States, No. 3:16-cv-01512, 2017 WL 4418132, at *3 (M.D.
Tenn. Oct. 5, 2017) (rejecting, in light of Beckles,
petitioner's claim that Johnson prohibited the
use of his prior Tennessee convictions for aggravated
burglary to enhance his sentence under the Guidelines).
cases, a federal criminal defendant is limited to a
collateral attack filed within one year of the date her
conviction became final. 28 U.S.C. § 2255(f)(1).
Generally, “a conviction becomes final for purposes of
collateral attack at the conclusion of direct review.”
United States v. Cottage, 307 F.3d 494, 498 (6th
Cir. 2002). When a defendant does not take a direct appeal,
her conviction becomes final when the time for filing an
appeal expires. Sanchez-Castellano v. United States,
358 F.3d 424, 427 (6th Cir. 2004). The Federal Rules of
Appellate Procedure provide, in pertinent part, that “a
[criminal] defendant's notice ...