United States District Court, E.D. Tennessee
STEPHEN W. MULLICAN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
A. VARLAN UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner Stephen W.
Mullican's motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255, and the United
States' motion to deny and dismiss the same. Having
considered the pleadings and the record, along with the
relevant law, the Court finds that it is unnecessary to hold
an evidentiary hearing in this matter. The stay of this case will
be lifted, and the United States' motion to deny the
petition and dismiss this action will be granted.
RELEVANT BACKGROUND FACTS AND PROCEDURAL HISTORY
2004, Mullican pleaded guilty to armed bank robbery and was
sentenced as a career offender to 235 months'
imprisonment [See Docs. 16-19 in No. 3:03-CR-134].
He later unsuccessfully sought relief under § 2255
[Docs. 23 and 24 in No. 3:03-CR-134]. In 2016, the Sixth
Circuit authorized Mullican to file a successive motion under
§ 2255 to contest his career-offender classification in
light of Johnson v. United States, 135 S.Ct. 2551,
2563 (2015), which invalidated the so-called residual clause
of the Armed Career Criminal Act as unconstitutionally vague
[See Doc. 37 in No. 3:03-CR-134]. The Sixth Circuit
also 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), which would resolve
whether Johnson's reasoning applied to the
United States Sentencing Guidelines
(“Guidelines”), and if so, whether such
application would be retroactive to cases on collateral
2017, the Supreme Court decided Beckles, holding
that the advisory Guidelines are not subject to vagueness
challenges under the Due Process Clause. Beckles,
137 S.Ct. at 895. Based on Beckles, the United
States filed a motion to deny Mullican's § 2255
motion and dismiss this action with prejudice [Doc. 4].
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).
argues that the Beckles' holding does not
foreclose his claim, as he was sentenced pre-Booker,
under the mandatory Guidelines. See United States v.
Booker, 543 U.S. 220, 245 (2005) (rendering Guidelines
advisory). However, 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.”).
Accordingly, Mullican has not satisfied his burden to
establish a basis for § 2255 relief.
this motion had merit, it as not timely. Mullican did not
file the instant motion until 2016, over a decade after his
2004 conviction. Therefore, Mullican did not file it within
one year of the date his conviction became final, as required
to comply with § 2255's one-year statute of
limitations. 28 U.S.C. § 2255(f)(1). Neither
Johnson nor Beckles provides an alternative
“trigger” date for starting the applicable
limitations period. See, e.g., 28 U.S.C. §
2255(f)(3) (providing one-year limitation period runs from
the date on which the Supreme Court initially recognized the
asserted right and made it retroactively applicable to cases
on collateral review); Chambers, 2019 WL 852295, at
*3 (noting Johnson's application to mandatory
Guidelines is “an open question” rather than a
right newly recognized by the Supreme Court). Accordingly,
that the instant § 2255 motion is untimely serves as an
alternative basis for dismissal.
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. Mullican 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.
The Court CERTIFIES that any appeal from
this action would not be taken in good faith and would be
frivolous. Fed. R. App. 24. Therefore, Petitioner will be
DENIED leave to proceed in forma
pauperis on appeal, should he file for one. Fed. R. App.