United States District Court, E.D. Tennessee, Chattanooga
CALVIN D. CANNON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Christopher H. Steger, Magistrate Judge
R. MCDONOUGH, UNITED STATES DISTRICT JUDGE
the Court is Petitioner's motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255 (Doc.
1 in No. 1:19-cv-235; Doc. 52 in No. 1:99-cr-75). For the
following reasons, Petitioner's motion will be
2000, Petitioner pleaded guilty to distribution of crack
cocaine, in violation of 21 U.S.C. § 841. (See
Doc. 50 in No. 1:99-cr-75.) United States District Court
Judge Curtis Collier determined that Petitioner qualified as
a career offender under United States Sentencing Guideline
§ 4B1.1 and sentenced him to 200 months'
imprisonment, followed by six years of supervised release.
(Id.) Petitioner did not appeal his sentence but did
file a motion to vacate, set aside, or correct his sentence
pursuant to § 2255 on May 6, 2002. (See Doc. 1
in No. 1:02-cv-150.) The district court dismissed the motion
as untimely on July 31, 2002 (Doc. 7 in No. 1:02-cv-150), and
the United States Court of Appeals for the Sixth Circuit
dismissed the appeal for want of prosecution (Doc. 9 in No.
November 2015, after completing the custodial portion of his
federal-court sentence, and while on supervised release,
Petitioner pleaded guilty to aggravated assault in state
court and was sentenced to six years' imprisonment.
(Id.) On July 11, 2018, Judge Collier revoked
Petitioner's supervised release after he admitted to
violating the terms of his supervised release, including
being convicted for aggravated assault. (Id.) At the
revocation hearing, Petitioner's counsel acknowledged
that the aggravated-assault conviction constituted a Grade A
violation but requested that the Court vary downward and
sentence him as if he had committed a Grade B or C violation
to avoid duplicating the state court's six-year term of
imprisonment for the aggravated-assault offense.
(Id.) Judge Collier sentenced Petitioner to three
years' incarceration with no supervised release to
follow. (Doc. 44 in No. 1:99-cr-75.)
appealed Judge Collier's revocation sentence to the Sixth
Circuit. (See Doc. 46 in No. 1:99-cr-75.) On March
26, 2019, the Sixth Circuit affirmed Judge Collier's
revocation sentence as procedurally reasonable, noting that
Judge Collier adequately considered the relevant factors in
18 U.S.C. § 3553(a) and explained the reason for the
sentence imposed. (Doc. 50 in No. 1:99-cr-75.)
August 20, 2019, Petitioner filed the instant motion to
vacate, set aside, or correct his sentence. (Doc. 1 in No.
1:19-cv-235; Doc. 52 in No. 1:99-cr-75.) In his motion,
Petitioner appears to argue that: (1) the First Step Act,
Pub. L. 115-391, § 404, 132 Stat. 5194, 5222 (2018),
reduced the applicable statutory range for his sentence and
supervised release on his underlying cocaine-distribution
conviction such that he is entitled to immediate release from
his incarceration for violating the terms of his supervised
release; (2) not reducing his sentence under the First Step
Act would violate Apprendi v. New Jersey, 530 U.S.
466 (2000) and Alleyne v. United States, 133 S.Ct.
2151 (2013); (3) he no longer qualifies as a career offender
under United States Sentencing Guideline § 4B1.1; (4)
the district court failed to adequately explain its basis for
his revocation sentence; and (5) he is entitled to a jury in
connection with revocation of his supervised release under
United States v. Haymond, 139 S.Ct. 2369 (2019).
(See generally Doc. 1 in No. 1:19-cv-235.)
Petitioner's motion is now ripe for the Court's
STANDARD OF LAW
obtain relief under § 2255, a petitioner must
demonstrate: “(1) an error of constitutional magnitude;
(2) a sentence imposed outside the statutory limits; or (3)
an error of fact or law . . . so fundamental as to render the
entire proceeding invalid.” Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting
Mallett v. United States, 334 F.3d 491, 496-97 (6th
Cir. 2003)). The petitioner “must clear a significantly
higher hurdle than would exist on direct appeal” and
establish a “fundamental defect in the proceedings
which necessarily results in a complete miscarriage of
justice or an egregious error violative of due
process.” Fair v. United States, 157 F.3d 427,
430 (6th Cir. 1998).
in ruling on a motion made pursuant to § 2255, the Court
must determine whether an evidentiary hearing is necessary.
“An evidentiary hearing is required unless the record
conclusively shows that the petitioner is entitled to no
relief.” Martin v. United States, 889 F.3d
827, 832 (6th Cir. 2018) (quoting Campbell v. United
States, 686 F.3d 353, 357 (6th Cir. 2012)); see
also 28 U.S.C. § 2255(b). “The burden for
establishing entitlement to an evidentiary hearing is
relatively light, and where there is a factual dispute, the
habeas court must hold an evidentiary hearing to
determine the truth of the petitioner's claims.”
Martin, 889 F.3d at 832 (internal quotations
omitted). While a petitioner's “mere assertion of
innocence” does not entitle him to an evidentiary
hearing, the district court cannot forego an evidentiary
hearing unless “the petitioner's allegations cannot
be accepted as true because they are contradicted by the
record, inherently incredible, or conclusions rather than
statements of fact.” Id. When petitioner's
factual narrative of the events is not contradicted by the
record and not inherently incredible and the government
offers nothing more than contrary representations, the
petitioner is entitled to an evidentiary hearing.
Petitioner's Claims Related to his Original
extent Petitioner seeks relief under § 2255 in
connection with the Court's original sentence set forth
in its judgment dated May 16, 2000, those claims fail for at
least two reasons. First, because Petitioner previously filed
a motion to vacate, set aside, or correct his sentence (Doc.
1 in No. 1:02-cv-150), the Court cannot consider a second
motion to vacate, set aside, or correct related to his
original sentence unless Petitioner first obtains