Brown v. USA, No. 4:2016cv00049 - Document 5 (E.D. Tenn. 2019)

Court Description: 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)

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Brown v. USA Doc. 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE at WINCHESTER GARY FLEMING, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) ) 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 Dockets.Justia.com 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 2

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