Brown v. USA
Filing
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MEMORANDUM AND OPINION: Accordingly, the Governments Motion to Deny Petitioners § 2255 Motion as Meritless and to Dismiss it with Prejudice (Doc. 4) will be GRANTED. Petitioners § 2255 Motion (Doc. 1) will be DENIED and th is action will be DISMISSED WITH PREJUDICE. The Governments Motion for Extension of Time to File a Response (Doc. 2) and Motion to Defer Ruling Pending Beckles (Doc. 3) will be DENIED AS MOOT. The Court further will CERTIFY that any appeal from this action would not be taken in good faith and would be totally frivolous. Therefore, this Court will DENY Petitioner leave to proceed in forma pauperis on appeal. See Fed. R. App. P. 24. Finally, Petitioner having failed to make a substantial showing o f the denial of a constitutional right,a certificate of appealability SHALL NOT ISSUE. 28 U.S.C. § 2253; Fed. R. App. P. 22(b). AN APPROPRIATE JUDGMENT ORDER WILL ENTER. Signed by District Judge Harry S Mattice, Jr on 5/10/2019. (Copy of memo&opinion mailed to petitioner Gary Fleming)(DJH)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at WINCHESTER
GARY FLEMING,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 4:16-cv-49
Judge Mattice
MEMORANDUM OPINION
Before the Court is Petitioner’s motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255 (Doc. 1) and the Government’s Motion to Deny and Dismiss
with Prejudice Petitioner’s § 2255 Motion (Doc. 4).
In his § 2255 motion, Petitioner challenges his classification as a career offender
under § 4B1.1 of the United States Sentencing Guidelines in light of Johnson v. United
States, 135 S. Ct. 2551, 2563 (2015), which held that the residual clause of the identicallyworded Armed Career Criminal Act, 28 U.S.C. § 924(e), is unconstitutionally vague in
violation of the Due Process Clause. However, the United States Supreme Court since has
ruled in Beckles v. United States, 137 S. Ct. 886 (2017), that the United States Sentencing
Guidelines are not amenable to the vagueness challenge that was successful in Johnson,
foreclosing Petitioner’s argument.
Accordingly, the Government’s Motion to Deny Petitioner’s § 2255 Motion as
Meritless and to Dismiss it with Prejudice (Doc. 4) will be GRANTED. Petitioner’s §
2255 Motion (Doc. 1) will be DENIED and this action will be DISMISSED WITH
PREJUDICE. The Government’s Motion for Extension of Time to File a Response (Doc.
2) and Motion to Defer Ruling Pending Beckles (Doc. 3) will be DENIED AS MOOT.
The Court further will CERTIFY that any appeal from this action would not be
taken in good faith and would be totally frivolous. Therefore, this Court will DENY
Petitioner leave to proceed in forma pauperis on appeal. See Fed. R. App. P. 24. Finally,
Petitioner having failed to make a substantial showing of the denial of a constitutional
right, a certificate of appealability SHALL NOT ISSUE. 28 U.S.C. § 2253; Fed. R. App.
P. 22(b).
AN APPROPRIATE JUDGMENT ORDER WILL ENTER.
/s/ Harry S. Mattice, Jr._____
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE
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