Mullican v. USA
Filing
15
MEMORANDUM OPINION. Signed by District Judge Thomas A Varlan on 6/11/19. (JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
STEPHEN W. MULLICAN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
)
)
)
)
)
)
)
)
)
No.:
3:16-CV-567-TAV
MEMORANDUM OPINION
This 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
hearing1 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.
I.
RELEVANT BACKGROUND FACTS AND PROCEDURAL HISTORY
In 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
1
An evidentiary hearing is required on a § 2255 motion unless the motion, files, and record
conclusively show that the prisoner is not entitled to relief. See 28 U.S.C. § 2255(b). It is the
prisoner’s ultimate burden, however, to sustain his claims by a preponderance of the evidence. See
Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). Accordingly, where “the record
conclusively shows that the petitioner is entitled to no relief,” a hearing is not required. Arredondo
v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (citation omitted).
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 review.
In 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].
II.
LEGAL STANDARD
After a 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
2
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).
III.
DISCUSSION
Mullican 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.
Even if 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
3
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.
IV.
CERTIFICATE OF APPEALABILITY
When 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.
Moreover, 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
4
DENIED leave to proceed in forma pauperis on appeal, should he file for one. Fed. R.
App. P. 24.
V.
CONCLUSION
For the reasons set forth above, the stay of these proceedings will be LIFTED, the
United States’ motion to deny Mullican’s § 2255 motion and dismiss this action [Doc. 4]
will be GRANTED, and this action will be DISMISSED WITH PREJUDICE. A COA
from the denial of this § 2255 motion will be DENIED.
An appropriate Order will enter.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?