United States District Court, E.D. Tennessee, Chattanooga
L. COLLIER UNITED STATES DISTRICT JUDGE.
inmate Arteria Bibbs has filed a motion to vacate, set aside,
or correct sentence pursuant to 28 U.S.C. § 2255.
Respondent has filed a response in opposition to the motion,
to which Bibbs has replied. Having considered the pleadings
and the record, along with the relevant law, the Court finds
that it is unnecessary to hold an evidentiary
hearing or delay ruling, and Bibbs' §
2255 motion will be denied.
BACKGROUND FACTS AND PROCEDURAL HISTORY
pleaded guilty to one count of possessing crack cocaine with
intent to distribute on September 21, 2000 (Doc. 14 in No.
1:00-CR-84). He was designated a career offender under United
States Sentencing Guideline (“Guideline(s)”)
§ 4B1.1 based on two predicate convictions: (1) a 1994
Tennessee conviction for felonious reckless endangerment; and
(2) a 1994 Tennessee conviction for attempted possession of
cocaine for resale (Doc. 3 at 1). He was sentenced on
February 9, 2001, under a pre-Booker Guidelines
scheme, to serve 262 months of incarceration (Doc. 17 in No.
1:00-CR-84). His conviction and sentence were affirmed on
appeal. United States v. Bibbs, 23 Fed.Appx. 502
(6th Cir. 2001), cert. denied, Bibbs v. United
States, 535 U.S. 1087 (2002).
Bibbs filed several unsuccessful motions seeking to vacate or
reduce his sentence (See Docs. 28, 30, 31, 32-37,
38, 39-41, 46 in No. 1:00-CR-84). In 2016, Bibbs sought and
obtained permission from the Sixth Circuit to file the
instant successive petition based upon the Supreme
Court's ruling in Johnson v. United States,
which found the “residual clause” of the Armed
Career Criminal Act unconstitutionally vague (Doc. 43, 44,
47-49 in No. 1:00-CR-84). Johnson, 135 S.Ct. 2251,
2563 (2015). The Sixth Circuit directed this Court to hold
the motion in abeyance pending the Supreme Court's
decision in Beckles v. United States, 137 S.Ct. 886
(2017) (Doc. 47 in No. 1:00-CR-84). After Beckles
was decided, the Government responded to the motion, as
supplemented by Bibbs (Docs. 2, 3, 5). Bibbs also filed a
reply to the Government's response (Doc. 6). In October
2018, Bibbs filed a motion to defer ruling on the instant
§ 2255 motion until the Supreme Court resolved the
petition for certiorari in Raybon v. United States,
867 F.3d 625 (6th Cir. 2017), cert. denied, 138
S.Ct. 2261 (2018) (Doc. 7). Raybon now having been
concluded, this matter is ripe for review.
defendant has been convicted and exhausted his appeal rights,
a court may presume that “he stands fairly and finally
convicted.” United States v. Frady, 456 U.S.
152, 164 (1982). A court may grant relief under 28 U.S.C.
§ 2255, but the statute “does not encompass all
claimed errors in conviction and sentencing.”
United States v. Addonizio, 442 U.S. 178, 185
(1979). Rather, collateral attack limits a movant's
allegations to those of constitutional or jurisdictional
magnitude, or those containing factual or legal errors
“so fundamental as to render the entire proceeding
invalid.” Short v. United States, 471 F.3d
686, 691 (6th Cir. 2006) (citation omitted); see
also 28 U.S.C. § 2255(a).
instant § 2255 motion, Bibbs argues that the residual
clause of § 4B1.2 is identical to the one held
unconstitutional in Johnson, and therefore, his
convictions are no longer career-offender predicates. See
Johnson v. United States, 135 S.Ct. 2551 (2015); see
also Welch v. United States, 136 S.Ct. 1257, 1268 (2016)
(applying Johnson rule retroactively). In
Beckles v. United States, 137 S.Ct. 886, 892-94
(2017), the Supreme Court held that the advisory sentencing
Guidelines are not subject to vagueness challenges under the
Due Process Clause. Beckles, 137 S.Ct. at 892-94.
Bibbs, however, argues that Beckles does not
foreclose his claim, as he was sentenced under the mandatory
Guidelines. See United States v. Booker, 543 U.S.
220, 245 (2005) (rendering Guidelines advisory).
argument, however, is foreclosed by Sixth Circuit precedent.
In Raybon v. United States, the Sixth Circuit
determined that Johnson did not recognize a
“right not to be sentenced as [a] career offender
under the residual clause of the mandatory Sentencing
Guidelines.” Raybon v. United States, 867 F.3d
625, 631 (6th Cir. 2017), cert. denied, 138 S.Ct.
2661 (2018); see also Chambers v. United States, No.
18-3298, 2019 WL 852295, at *1 (6th Cir. Feb. 21, 2019)
(“Johnson's holding does not extend to
those sentenced under the Guidelines' residual clause in
the pre-Booker era.”). Therefore, Bibbs is not
entitled to relief, and his motion will be denied.
CERTIFICATE OF APPEALABILITY
considering a § 2255 motion, this Court must
“issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” Rule 11
of the Rules Governing Section 2255 Proceedings for the
United States District Courts. Bibbs must obtain a COA before
he may appeal the denial of his § 2255 motion. 28 U.S.C.
§ 2253(c)(1)(B). A COA will issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). For
cases rejected on their merits, a movant “must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong” to warrant a COA. Slack v. McDaniel,
529 U.S. 473, 484 (2000). To obtain a COA on a claim that has
been rejected on procedural grounds, a movant must
demonstrate “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.” Id. Based
on the Slack criteria, the Court finds that a COA
should not issue in this cause.
reasons stated herein, Bibbs has failed to establish any
basis upon which § 2255 relief could be granted, and his
§ 2255 motion (Doc. 2) will be DENIED.
Bibbs' motion to defer ruling (Doc. 7) will be