Lee v. United States of America

Filing 5

ORDER DENYING § 2255 MOTION (re 1 ), DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge J. Daniel Breen on 4/17/18. (cdi)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
BOBBY WAYNE LEE,
Petitioner,
v.

No. 1:15-cv-01233-JDB-egb
No. 1:08-cr-10131-JDB-1

UNITED STATES OF AMERICA,
Respondent.
ORDER DENYING § 2255 MOTION,
DENYING CERTIFICATE OF APPEALABILITY,
AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

In September 2015, Petitioner, Bobby Wayne Lee, filed a pro se motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255 (“Petition”). (Case Number (“No.”) 15-cv1233, Docket Entry (“D.E.”) 1.) For the reasons that follow, the Petition is DENIED.
Lee was indicted in December 2008 on two counts of distributing cocaine base in
violation of 21 U.S.C. § 841(a)(1). (No. 08-cr-10131, D.E. 4 at PageID 5-6.) He subsequently
entered a plea of guilty to the second count, (id., D.E. 24; id., D.E. 23), and the first count was
dismissed, (id., D.E. 48).
Defendant was determined to be subject to an enhanced sentence as a career offender
under § 4B1.1 of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”), based
on two Tennessee convictions for aggravated assault. (Presentence Report ¶¶ 18, 28, 30; No. 08cr-10131, D.E. 61 at PageID 109.) On February 16, 2010, he was sentenced to 130 months’
imprisonment and four years of supervised release. (No. 08-cr-10131, D.E. 48.)

In his federal Petition, the inmate seeks relief pursuant to Johnson v. United States, 135
S. Ct. 2551 (2015). (No. 15-cv-01233, D.E. 1 at PageID 4.) He argues that Johnson renders
unconstitutional his designation as a career offender under § 4B1.1 of the Guidelines.
Lee was released from prison in May 2017. (See No. 08-cr-10131, D.E. 74 at PageID
147.) Although currently on supervised release, (see id.), he has not notified the Court of his
change of address.
Because a party’s most basic responsibility is to keep the Court apprised of his
whereabouts, Petitioner’s failure to do so in this case is reason enough to deny the Petition. Even
if considered on the merits, however, the Petition fails. On March 6, 2017, the Supreme Court
refused to extend Johnson’s reasoning to the Guidelines’ career offender provisions. See Beckles
v. United States, 137 S. Ct. 886, 892 (2017).
Accordingly, the Petition is DENIED.
APPEAL ISSUES
A § 2255 petitioner may not proceed on appeal unless a district or circuit judge issues a
certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). A COA
may issue only if the petitioner has made a substantial showing of the denial of a constitutional
right.

28 U.S.C. § 2253(c)(2)-(3).

A substantial showing is made when the petitioner

demonstrates that “reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were
‘adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). “If the petition was denied
on procedural grounds, the petitioner must show, ‘at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right and that

2

jurists of reason would find it debatable whether the district court was correct in its procedural
ruling.’” Dufresne v. Palmer, 876 F.3d 248, 253 (6th Cir. 2017) (quoting Slack, 529 U.S. at
484).
In this case, reasonable jurists would not debate the correctness of the Court’s decision to
deny the Petition. Because any appeal by Petitioner does not deserve attention, the Court
DENIES a certificate of appealability.
Pursuant to Federal Rule of Appellate Procedure 24(a), a party seeking pauper status on
appeal must first file a motion in the district court, along with a supporting affidavit. Fed. R.
App. P. 24(a). However, Rule 24(a) also provides that if the district court certifies that an appeal
would not be taken in good faith, the prisoner must file his motion to proceed in forma pauperis
in the appellate court. Id.
In this case, for the same reason it denies a COA, the Court CERTIFIES, pursuant to
Rule 24(a), that any appeal in this matter would not be taken in good faith. Leave to appeal in
forma pauperis is therefore DENIED.1
IT IS SO ORDERED this 17th day of April 2018.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE

1

If Petitioner files a notice of appeal, he must also pay the full $505.00 appellate filing
fee or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit
Court of Appeals within thirty days.
3