Pollard v. United States of America
MEMORANDUM signed by Chief Judge Waverly D. Crenshaw, Jr on 9/7/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA,
CHIEF JUDGE CRENSHAW
Pending before the Court are the Petitioner’s pro se Motion Under 28 U.S.C. § 2255 To
Vacate, Set Aside, Or Correct Sentence (Doc. No. 1); an Amended Motion To Vacate, Set Aside,
Or Correct Sentence In Accordance With 28 U.S.C. § 2255 (Doc. No. 7), filed by counsel for the
Petitioner; and the Government’s Response (Doc. No. 8). By Order entered July 18, 2016 (Doc. No.
9), now–retired Judge John T. Nixon dismissed the Petitioner’s claim regarding the constitutionality
of 18 U.S.C. § 924(c)(3)(B), and stayed the Petitioner’s claim regarding the sentence enhancement
under Sentencing Guideline § 4B1.2 pending resolution of Beckles v. United States, 136 S. Ct. 2510
(2016). The case was subsequently randomly reassigned to the undersigned Judge.
On March 6, 2017, the Supreme Court issued its decision in Beckles v. United States, ___
U.S. ___, 137 S. Ct. 886, 891, 197 L. Ed. 2d 145 (2017). The Petitioner’s remaining claim is now
ripe for decision. For the reasons set forth herein, the Petitioner’s Motions (Doc. Nos. 1, 7) are
DENIED, and this action is DISMISSED.1
II. Procedural and Factual Background
In the underlying criminal case, the Petitioner pled guilty, before Judge Nixon, to
participating in a conspiracy to commit Hobbs Act robbery and extortion, in violation of 18 U.S.C.
§ 1951; and possessing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §
924(c). (Doc. Nos. 2223, 2304, 2305, 2943 in Case No. 3:09cr00240). Through the Plea Agreement,
the Government agreed to dismiss the two remaining counts against the Petitioner, and the parties
contemplated cooperation by the Petitioner potentially leading to a Government motion for a
reduced sentence for substantial assistance. (Id.) At the subsequent sentencing hearing, on November
4, 2013, Judge Nixon granted the Government’s motion for a substantial assistance reduction, and
accepted the parties’ recommendation that the Petitioner be sentenced to a total term of 180 months
of imprisonment. (Doc. Nos. 2477, 2480, 2481, 2944 in Case No. 3:09cr00240). The record indicates
that no appeal was taken.
A. The Section 2255 Remedy
28 U.S.C. Section 2255 provides federal prisoners with a statutory mechanism by which to
seek to have their sentence vacated, set aside or corrected:
(a) A prisoner in custody under sentence of a court established by Act of Congress
After filing his pro se Motion To Vacate in this case, the Petitioner filed a Motion To
Amend 28 U.S.C. § 2255f (3) which was docketed as Case No. 3:16cv1458. By Order entered
December 6, 2016 (Doc. No. 16), Judge Nixon determined that the issues presented in the
Petitioner’s Motion To Amend were subsumed in this case, and consolidated Case No.
3:16cv1458 with this case. Accordingly, the requests for relief made in Case No. 3:16cv1458 are
denied and dismissed through this Memorandum Opinion and accompanying Order.
claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate, set aside or correct the
28 U.S.C. § 2255(a).
In order to obtain relief under Section 2255, the petitioner must demonstrate constitutional
error that had a “‘substantial and injurious effect or influence on the guilty plea or the jury's
verdict.’” Hamblen v. United States, 591 F.3d 471, 473 (6th Cir. 2009)(quoting Griffin v. United
States, 330 F.3d 733, 736 (6th Cir. 2003)).
The court should hold an evidentiary hearing in a Section 2255 proceeding where a factual
dispute arises, unless the petitioner’s allegations “‘cannot be accepted as true because they are
contradicted by the record, inherently incredible, or [are] conclusions rather than statements of
fact.’” Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013)(quoting Arredondo v. United States,
178 F.3d 778, 782 (6th Cir. 1999)). In addition, no hearing is required where “the record conclusively
shows that the petitioner is entitled to no relief.” Arredondo, 178 F.3d at 782 (quoting Blanton v.
United States, 94 F.3d 227, 235 (6th Cir. 1996)). See also Fifer v. United States, 660 F. App'x 358,
359 (6th Cir. Aug. 22, 2016).
Having reviewed the pleadings, briefs and records filed in Petitioner's underlying criminal
case, as well as the pleadings, briefs and records filed in this case, the Court finds that it need not
hold an evidentiary hearing in this case to resolve the Petitioner’s claims. The record conclusively
establishes that the Petitioner is not entitled to relief on his claims for the reasons set forth herein.
B. Johnson v. United States
Through his pending claim, the Petitioner contends that his sentence should be vacated based
on the Supreme Court’s decision in Johnson v. United States, 135 S.Ct. 2551 (2015). In Johnson,
the Supreme Court held that the so-called “residual clause” of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), is unconstitutionally vague. The ACCA provides for a 15-year
mandatory minimum sentence for defendants convicted of certain firearms offenses who have three
previous convictions for a “violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e)(1). The
statute goes on to define “violent felony” as follows, with the residual clause set forth in italics:
(2) As used in this subsection–
(B) the term “violent felony” means any crime punishable by
imprisonment for a term exceeding one year, or any act of juvenile
delinquency involving the use or carrying of a firearm, knife, or
destructive device that would be punishable by imprisonment for
such term if committed by an adult, that –
(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another. . .
Several courts have applied the Johnson decision to invalidate the identically-worded portion
of the definition of “crime of violence” set forth in the career offender Sentencing Guideline.2 See,
Prior to August 1, 2016, Sentencing Guideline Section 4B1.2(a), the career offender
guideline, defined “crime of violence” as follows, with the residual clause set forth in italics:
e.g., United States v. Pawlek, 822 F.3d 902 (6th Cir. 2016). Relying on this reasoning, the Petitioner
argues that the Johnson decision invalidates his sentence because the career offender guideline’s
residual clause was applied to him. In the absence of the residual clause, the Petitioner contends, his
Hobbs Act conspiracy offense does not otherwise satisfy the “crime of violence” definition, and he
no longer qualifies for the career offender enhancement.
In its Response, the Government argues that the Petitioner’s claim is dependent on the
outcome of the Supreme Court’s decision in Beckles, supra.
In Beckles v. United States, 137 S. Ct. 886 at 895, the Supreme Court held that the Johnson
decision does not extend to the definitions in the Sentencing Guidelines because the Sentencing
Guidelines are advisory, and therefore, not subject to a vagueness challenge under the Due Process
clause. See Harris v. United States, 686 F. App'x 345, 348 (6th Cir. 2017)(Applying Beckles to
affirm the dismissal of the petitioner’s Section 2255 motion to vacate). Thus, even if the Petitioner’s
(a) The term ‘crime of violence’ means any offense under federal
or state law, punishable by imprisonment for a term exceeding one
year, that-(1) has as an element the use, attempted use, or
threatened use of physical force against the person
of another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.
Amendment 798 to the Sentencing Guidelines, which became effective on August 1,
2016, deleted the residual clause portion of the definition and replaced it with language that
enumerates specific offenses.
conviction for Hobbs Act conspiracy qualified as a “crime of violence” under the career offender
guideline’s residual clause, Beckles holds that application of the guideline’s residual clause was not
unconstitutional. The Petitioner has not suggested a basis for distinguishing the decision in Beckles,
nor has he asserted an alternative basis upon which to vacate his sentence. Accordingly, the
Petitioner’s Motions To Vacate are denied.
For the reasons set forth herein, the Court concludes that the Petitioner’s request for Section
2255 relief should be denied. Accordingly, this action is dismissed.
Should the Petitioner give timely notice of an appeal from this Memorandum, and
accompanying Order, such notice shall be treated as a application for a certificate of appealability,
28 U.S.C. § 2253(c), which will not issue because the Petitioner has failed to make a substantial
showing of the denial of a constitutional right. Castro v. United States, 310 F.3d 900 (6th Cir. 2002).
An appropriate order will be entered.
WAVERLY D. CRENSHAW, JR.
Chief United States District Judge
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