United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING MOTIONS FOR STATUS UPDATE AND FOR
EVIDENTIARY HEARING AND APPOINTMENT OF COUNSEL
DANIEL BREEN, UNITED STATES DISTRICT JUDGE
October 23, 2017, Petitioner, Danny Arseno Walker, filed a
pro se motion to vacate, set aside, or correct his
sentence (the “Petition”), pursuant to 28 U.S.C.
§ 2255. (Docket Entry (“D.E.”) 1.) In
compliance with the Court's October 31, 2017, order
(see D.E. 3), Respondent, United States of America,
filed an answer to the Petition, (D.E. 7). On August 26,
2019, Petitioner submitted a motion for a status update,
(D.E. 11), and a document styled “Motion to Take
Judicial Notice and Motion for Appointment of Counsel,
” (D.E. 12). For the following reasons, the motions are
September 30, 2019, the Clerk of Court mailed a copy of the
docket sheet to Walker. The motion for a status update is
therefore DENIED as moot.
“Motion to Take Judicial Notice and Motion for
Appointment of Counsel, ” Petitioner requests an
evidentiary hearing on the issue of whether he is entitled to
resentencing on the basis of the Sixth Circuit's recent
decision in United States v. Havis, 927 F.3d 382
(6th Cir. 2019) (en banc), reconsideration
denied, 929 F.3d 317 (6th Cir. 2019). (D.E. 12 at PageID
62-64.) He also asks that the Court appoint counsel to
represent him at the hearing. (Id. at PageID 65.)
For the following reasons, these requests are DENIED.
federal criminal case, Walker pleaded guilty to one count of
conspiracy to distribute a controlled substance, in violation
of 21 U.S.C. §§ 841(a)(1) and 846. (United
States v. Walker, No. 1:15-cr-10095-JDB-1 (“No.
15-cr-10095”), D.E. 196 (W.D. Tenn. May 5, 2016).) At
sentencing, he was determined to be a career offender under
§ 4B1.1 of the United States Sentencing Commission
Guidelines Manual (the “Guidelines”), based on
two Tennessee convictions for possession of more than .5
grams of cocaine with intent to sell. (Id. at D.E.
309 at PageID 1039-40; Presentence Report (“PSR”)
at ¶¶ 28, 38, 39.) His advisory Guidelines'
imprisonment range was 151 to 188 months. (PSR at ¶ 73.)
The Court imposed a sentence of 151 months along with three
years of supervised release. (No. 15-cr-10095, D.E. 297.)
Walker took an unsuccessful direct appeal. (Id.,
two years after Walker's judgment of conviction became
final, the Sixth Circuit, sitting en banc, held in
Havis that “delivery” of a controlled
substance under Tenn. Code Ann. § 39-17-417(a) is
broader than the Guidelines' definition of a controlled
substance offense. Havis, 927 F.3d at 385-87.
Petitioner argues that he is entitled to an evidentiary
hearing to determine whether he no longer qualifies as a
career offender after Havis. (D.E. 12 at PageID
62-64.) The argument is misplaced.
has not brought a claim under Havis nor has he
sought leave to amend the Petition to assert such a claim.
See Fed. R. Civ. P. 15(a)(2). On that basis alone,
he is not entitled to an evidentiary hearing or appointment
even if the claim were properly before the Court, the
requests would be denied. In the Sixth Circuit's recent
decision of Bullard v. United States, 937 F.3d 654
(6th Cir. 2019), the § 2255 petitioner challenged the
district court's use of his “Arizona conviction for
attempting to sell cocaine” to qualify him as a career
offender. Bullard, 937 F.3d at 657. In support, he
invoked the Sixth Circuit's en banc decision in
Havis, 927 F.3d 382. Bullard, 937 F.3d at
656. The court held that the petitioner could not rely on
Havis to seek resentencing under § 2255 because
the claim was not cognizable in such a proceeding:
[We] repeat what we said in Snider [v. United
States, 908 F.3d 183 (6th Cir. 2018), cert.
denied, 139 S.Ct. 1573 (2019)]: “[a]
misapplication-of-an-advisory-guidelines-range claim is . . .
not cognizable under § 2255.” 908 F.3d at 191.
Indeed, every circuit to “look at the issue has
agreed that a defendant cannot use a § 2255 motion to
vindicate non-constitutional challenges to advisory guideline
calculations.” Id.; see also, e.g.,
Foote, 784 F.3d at 932 (same); Spencer, 773
F.3d at 1135 (same); Hawkins v. United States, 706
F.3d 820, 824-25 (7th Cir. 2013) (same); Sun Bear v.
United States, 644 F.3d 700, 704-06 (8th Cir. 2011)
(en banc) (same); United States v.
Williamson, 183 F.3d 458, 461-62 (5th Cir. 1999) (same).
As a result, Bullard cannot use § 2255-or our decision
in Havis-to attack collaterally his designation as
career offender under the Sentencing Guidelines. Both are
best left for direct review.
Bullard, 937 F.3d at 660-61.
a claim under Havis in the present case would, as in
Bullard, challenge the Court's application of
the advisory Guidelines, it would not be cognizable under
§ 2255. Petitioner's request for an evidentiary
hearing and appointment of counsel to pursue ...