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Holmes v. United States

United States District Court, W.D. Tennessee, Western Division

June 7, 2019

MICHAEL S. HOLMES, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE.

         Before the Court is Movant Michael S. Holmes' June 16, 2016 Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255. (ECF No. 1.) The United States of America (the “Government”) responded on April 26, 2019. (ECF No. 12.) Holmes replied on May 6, 2019. (ECF No. 13.)

         For the following reasons, the Court DENIES Holmes' motion and GRANTS Holmes a certificate of appealability (“COA”).

         I. Background

         In February 1995, Holmes pled guilty to attempting to possess nine kilograms of cocaine with intent to distribute. See United States v. Holmes, 142 F.3d 437 (6th Cir. 1998). The Court sentenced Holmes as a career offender under the United States Sentencing Guidelines (the “Guidelines”). (See No. 2:94-cr-20179, ECF Nos. 115, 154.) The Court based the career offender enhancement on two predicate convictions, one of which was for Tennessee sexual battery. (Id.)

         Holmes appealed his sentence on various grounds. See Holmes, 142 F.3d 437. He did not challenge his career offender status. Id. The Sixth Circuit affirmed Holmes' sentence. Id. The Supreme Court denied certiorari. Holmes v. United States, 525 U.S. 954 (1998). Holmes then filed two unsuccessful § 2255 motions. See In re: Michael Holmes, No. 14-5776 (6th Cir. 2014).

         In March 2016, Holmes asked the Sixth Circuit for an order authorizing him to file a third § 2255 motion. (ECF No. 5 at 22.)[1]Holmes contended that -- after Johnson v. United States, 135 S.Ct. 2551 (2015) -- his Tennessee sexual battery conviction could no longer serve as a predicate conviction for career offender status, and that, as a result, his sentence was invalid. In re: Michael Holmes, No. 16-5359 (6th Cir. 2016). While his request was pending, Holmes filed his third § 2255 motion on June 16, 2016. (ECF No. 1.) In August 2016, the Sixth Circuit authorized Holmes to file a third § 2255 motion. In re: Michael Holmes, No. 16-5359

         II. Analysis

         A. Holmes' Motion

         Binding precedent makes Holmes' motion untimely.

         Generally, a § 2255 motion must be filed within a year of “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). Holmes' conviction became final almost twenty years ago, when the Supreme Court declined to hear his case. Holmes relies on an exception to this general rule: a § 2255 motion remains timely if it is filed within a year of “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” Id. § 2255(f)(3).

         Holmes contends that Johnson, decided less than a year before he filed his motion, made the newly recognized right he asserts retroactively applicable on collateral review. Thus, he contends he has been denied the right not to be sentenced under an unconstitutionally vague sentencing provision.

         Holmes was sentenced as a career offender before the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005). The Guidelines were still mandatory. Then, as now, a court could classify a defendant as a career offender only if the defendant had at least two prior felony convictions for either a controlled substance offense or, as relevant here, a “crime of violence.” See U.S.S.G. § 4B1.1; Chambers v. United States, 763 Fed.Appx. 514, 519 (6th Cir. 2019) (Moore, J., concurring in the judgment), petition for reh'g en banc filed, No. 18-3298 (6th Cir. Apr. 8, 2019). When Holmes was sentenced, the Guidelines' definition of a “crime of violence” had a residual clause. In addition to specific crimes like arson and extorsion, a “crime of violence” included any crime that “involves conduct that presents a serious potential risk of physical injury to another.”[2] Chambers, 763 Fed.Appx. at 519 (Moore, J., concurring in the judgment). In Johnson, the Supreme Court held that the identically worded residual clause in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague. 135 S.Ct. at 2563. The Court later held that Johnson has retroactive effect in cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1265 (2016).

         Holmes contends that the Guidelines' residual clause was the only provision that could have made his Tennessee sexual battery conviction a predicate career offender conviction, that Johnson rendered the Guidelines' residual clause unconstitutionally vague, that his enhanced sentence is ...


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