United States District Court, E.D. Tennessee, Chattanooga
JOHNNY L. BARBOUR, Petitioner,
UNITED STATES OF AMERICA, Respondent.
L. COLLIER UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner Johnny L.
Barbour's motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255. 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, and the instant motion
will be denied.
RELEVANT BACKGROUND FACTS AND PROCEDURAL
October 13, 2010, Barbour shot Michael Kilgore with a .380
caliber pistol while Kilgore was giving Barbour a ride home
in his vehicle (Doc. 20 p. 2-3 in No. 1:12-CR-124). Kilgore
claimed Barbour shot him out of anger at Kilgore's
suggestion that Barbour get out of the car at a destination
near Barbour's home, while Barbour claimed he shot
Kilgore in self-defense (id.). A Tennessee jury
acquitted Barbour of several State charges arising out of the
subsequently pleaded guilty to the federal offense of
possessing ammunition as a felon in violation of 18 U.S.C.
§ 922(g)(1) (id. p. 1). Based on his three
prior Tennessee aggravated robbery convictions, Barbour was
initially deemed an armed career criminal and was sentenced
to 188 months' imprisonment (Doc. 27 in No. 1:12-CR-124).
On direct appeal, however, the Sixth Circuit vacated
Barbour's sentence and remanded the case for
resentencing, finding that the evidence in the record did not
conclusively establish that Barbour was properly classified
as an armed career criminal. United States v.
Barbour, 750 F.3d 535, 537 (6th Cir. 2014).
remand, Barbour's base offense level was recalculated as
24 under United States Sentencing Guideline
(“Guideline(s)”) § 2K2.1(a)(2) based on
Barbour's prior Tennessee convictions for a 2003
aggravated robbery and a 2005 aggravated robbery (Doc. 43 at
¶¶ 13, 27-28). After a three-level deduction for
acceptance of responsibility, Barbour had a total offense
level of 21 (id. at ¶¶ 20-22). Combined
with his criminal history category of V, that offense level
yielded a revised advisory Guidelines range of 70 to 87
months' imprisonment (id. at ¶ 44). The
Court ultimately sentenced Barbour to 87 months'
imprisonment (Doc. 46 in No. 1:12-CR-124).
appealed his amended judgment, and the Sixth Circuit affirmed
his conviction and sentence. United States v.
Barbour, 629 Fed.Appx. 727 (6th Cir. 2015). A year
later, Barbour filed this timely § 2255 motion to
contest the propriety of his career-offender classification
in light of Johnson v. United States, 135 S.Ct. 2551
(2015), which invalidated the residual clause of the Armed
Career Criminal Act (“ACCA”) as
unconstitutionally vague. Johnson, 135 S.Ct. at 2563
(Doc. 1). The United States was ordered to respond to
Barbour's motion, and it did so, filing a response on
November 28, 2016 (Doc. 2). In December 2016, Barbour filed
two motions for extensions of time within which to reply to
the United States' response (Docs. 3 and 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).
violations of 18 U.S.C. § 922(g)(1), offenders with two
prior convictions for either a “crime of
violence” or “controlled substance offense”
face a base offense level of 24. See §
2K2.1(a)(2). For purposes of that section, “crime of
violence” is defined as “any offense …
punishable by imprisonment for a term exceeding one
year” that (1) “has as an element the use,
attempted use, or threatened use of physical force against
the person of another” (the “use-of-force
clause”); (2) “is burglary of a dwelling, arson,
or extortion, [or] involves use of explosives” (the
“enumerated-offense clause”); or (3)
“otherwise involves conduct that presents a serious
potential risk of physical injury to another” (the
“residual clause”). Guideline § 4B1.2(a);
see also Guideline § 2K2.1, cmt. n.1
(“Crime of violence has the meaning given that term in
§ 4B1.2(a) and Application Note 1 of the Commentary to
was not resentenced under the ACCA, and therefore,
Johnson is not directly on point. Regardless,
Barbour claims his Guidelines career-offender enhancement was
necessarily based upon Guideline § 4B1.2's residual
clause, which Johnson also invalidated. However, the
Supreme Court has explicitly held that the Guidelines are not
subject to vagueness challenges, and that § 4B1.2's
residual clause is not void for vagueness. Beckles v.
United States, 137 S.Ct. 886, 895 (2017). Therefore,
Beckles conclusively forecloses Barbour's claim
that the Guidelines provision considered in his sentencing is
unconstitutionally vague, and Barbour has failed to state a
claim upon which relief may be granted under 28 U.S.C. §
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. Barbour 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 ...