United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGER UNITED STATES DISTRICT JUDGE.
Bartlett has filed a pro se Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (Doc. No. 1), challenging an
allegedly illegal sentence previously imposed by this court.
See United States v. Bartlett, No. 3:09-cr-00095
(M.D. Tenn. Sept. 25, 2009) (Judgment, Doc No.
As explained below, the court finds that an evidentiary
hearing is not required and that the movant is not entitled
22, 2009, Bartlett pleaded guilty to unarmed bank robbery, in
violation of 18 U.S.C. § 2113(a), before now-retired
Judge Todd J. Campbell. (Crim. Doc. Nos. 13, 25, 26.) At a
subsequent sentencing hearing, Judge Campbell adopted the
findings in the Presentence Report (Crim. Doc. No. 49), which
determined that the defendant was a career offender under
U.S.S.G. § 4B1.1, based on three prior Tennessee
convictions for aggravated burglary and one New York
conviction for attempted robbery, third degree. (Crim. Doc.
Nos. 44, 46, 47, 52.) Judge Campbell also determined that the
defendant's advisory guideline range was 151 to 188
months, based on a total offense level of 29 and a criminal
history category VI. (Crim. Doc. Nos. 47, 52.) The court
imposed a sentence of 151 months of imprisonment. (Crim. Doc.
No. 46.) The Sixth Circuit affirmed. (Crim. Doc. No. 53.)
through counsel, filed his original pro se Motion to
Vacate on March 31, 2016. Bartlett v. United States,
No. 3:16-cv-695, (M.D. Tenn.) (Doc. No. 1). Judge Campbell
appointed counsel, who filed an amended motion. The amended
petition argued that Bartlett's sentence should be
reduced based on Johnson v. United States, 135 S.Ct
2551 (2015), because he no longer qualified as a career
offender under the guidelines. Following Judge Campbell's
retirement, the matter was reassigned to the undersigned, and
that motion, as amended, was denied on the basis of the
Supreme Court's decision in Beckles v. United
States, 137 S.Ct. 886 (2017), which held that the
sentencing guidelines are advisory and not subject to a
vagueness challenge. Bartlett v. United States, No.
3:16-cv-00695 (M.D. Tenn. June 22, 2017).
9, 2017, prior to the dismissal of the original § 2255
motion, Bartlett filed the instant Motion to Vacate,
reasserting his claims that he was improperly sentenced as a
career offender, because his prior convictions for burglary
do not qualify as crimes of violence. The Motion to Vacate
was originally assigned to Chief Judge Waverly Crenshaw, Jr.,
who conducted an initial review and, because it was filed
prior to the final adjudication of the original motion,
determined that the new Motion to Vacate should be
transferred to the undersigned and treated as a motion to
amend the original motion rather than as a successive motion.
(Doc. No. 3.) Following transfer, this court granted Bartlett
leave to amend and directed the government to respond to the
amended Motion to Vacate. The government has filed its
Response (Doc. No. 6), arguing that relief remains barred by
Beckles and that, in any event, the arguments raised
in the amendment are time-barred.
entitled to relief, a prisoner who moves to vacate his
sentence under § 2255 must show that the sentence was
imposed in violation of the Constitution or laws of the
United States, that the court was without jurisdiction to
impose such sentence, that the sentence was in excess of the
maximum authorized by law, or that the sentence is otherwise
subject to collateral attack. 28 U.S.C. § 2255. To
prevail on a § 2255 motion, a movant “must
demonstrate the existence of an error of constitutional
magnitude which had a substantial and injurious effect or
influence on the guilty plea or the jury's
verdict.” Humphress v. United States, 398 F.3d
855, 858 (6th Cir. 2005) (quoting Griffin v. United
States, 330 F.3d 733, 736 (6th Cir. 2003)).
Non-constitutional errors are generally outside the scope of
§ 2255 relief. United States v. Cofield, 233
F.3d 405, 407 (6th Cir. 2000). A movant can prevail on a
§ 2255 motion alleging non-constitutional error only by
establishing a “fundamental defect which inherently
results in a complete miscarriage of justice, or an error so
egregious that it amounts to a violation of due
process.” Watson v. United States, 165 F.3d
486, 488 (6th Cir. 1999) (quoting United States v.
Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal
quotation marks and additional citation omitted)).
general rule, any claims not raised on direct appeal are
procedurally defaulted and may not be raised on collateral
review unless the movant shows “cause” to excuse
the procedural default and “actual prejudice”
resulting from the alleged errors, United States v.
Frady, 456 U.S. 152, 168 (1982) (citations omitted), or
that he is “actually innocent.” Bousley v.
United States, 523 U.S. 614, 622 (1998) (citations
omitted). A claim of ineffective assistance of counsel is not
subject to the procedural-default rule, Massaro v. United
States, 538 U.S. 500, 504 (2003), and may be raised in a
collateral proceeding under § 2255, regardless of
whether the movant could have raised the claim on direct
claims raised in a § 2255 motion are subject to a one
year statute of limitations running from the date the
underlying conviction becomes final. 28 U.S.C. §
2255(f)(1). In addition, if the Supreme Court decides a case
recognizing a substantive new right and the ruling is
“made retroactively applicable to cases on collateral
review, ” a federal prisoner seeking to assert that
right has one year from the date of the Supreme Court's
decision within which to file his § 2255 motion. 28
U.S.C. § 2255(f)(3); Dodd v. United States, 545
U.S. 353, 358-59 (2005).
Johnson v. United States, the Supreme Court struck
down the residual clause of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), as
unconstitutionally vague. Johnson, 135 S.Ct. 2551,
2557 (2015). It determined that the ACCA's residual
clause-which defined “violent felony” to include
any offense that “otherwise involves conduct that
presents a serious potential risk of physical injury to
another”-is so vague that it “denies fair notice
to defendants and invites arbitrary enforcement by
judges.” Id. The Court subsequently affirmed
that Johnson announced a new rule of substantive law
that was retroactively applicable on collateral review,
Welch v. United States, 136 S.Ct. 1257 (2016), thus
authorizing the filing of new § 2255 motions raising
Johnson-based claims with a one-year limitations
period that began running on June 26, 2015, the day
Johnson issued. 28 U.S.C. § 2255(f)(3).
was not sentenced under the ACCA. Instead, his sentencing
range was based on the career-offender sentencing guideline.
The career-offender guideline defines as a “career
offender” any adult offender whose “offense of
conviction is a felony that is either a crime of violence or
a controlled substance offense” and who “has at
least two prior felony convictions of either a crime of
violence or a controlled substance offense.” U.S.S.G.