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United States v. Tunstall

United States District Court, S.D. Ohio, Western Division

May 8, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DONNIE DONNELL TUNSTALL, Defendant.

          Walter Herbert Rice District Judge.

          DECISION AND ORDER WITHDRAWING PRIOR REPORTS AND RECOMMENDATIONS AND ORDERING THE GOVERNMENT TO ANSWER

          Michael R. Merz United States Magistrate Judge.

         This § 2255 case is before the Court on Defendant's Objections (ECF No. 71) to the Magistrate Judge's Second Supplemental Report and Recommendations which recommended that this case be dismissed with prejudice (“Report, ” ECF No. 70). Judge Rice has recommitted the case for reconsideration in light of the Objections (ECF No. 73). The United States has responded to the Objections[1] (ECF No. 75) and Defendant has filed a Reply to that response (ECF No. 76).

         Mr. Tunstall seeks relief -- on the basis of Johnson v. United States, 135 S.Ct. 2551 (June 26, 2015[2]), and United States v. Pawlak, 822 F.3d 902 (6th Cir. May 13, 2016) -- from his Sentencing Guideline classification as a career offender. Johnson declared the so-called residual clause of the Armed Career Criminal Act (“ACCA”) unconstitutionally vague; Pawlak applied Johnson to the parallel residual clause of the Sentencing Guidelines.

         The case was stayed to await the Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886, 197 L.Ed.2d 145 (March 6, 2017). After Beckles was handed down in March of this year, the Magistrate Judge recommended the case be dismissed with prejudice because the Supreme Court held in Beckles that the Sentencing Guidelines are not subject to a vagueness challenge under the Due Process Clause, 137 S.Ct. at 889. Tunstall objected that Beckles applies only to the advisory Sentencing Guidelines as they exist after United States v. Booker, 543 U.S. 220 (Jan 12, 2005), and he was sentenced before Booker while the Guidelines were mandatory. In the Second Supplemental Report and Recommendations, the Magistrate Judge concluded Beckles applies to all Sentencing Guidelines cases, both advisory and mandatory (i.e., pre-Booker) because of its holding that “the [Sentencing] Guidelines are not subject to a vagueness challenge under the Due Process Clause. The residual clause in §4B1.2(a)(2) therefore is not void for vagueness.” (2nd Supp R&R, ECF No. 70, PageID 380, quoting Beckles, 137 S.Ct. at 892.)

         Tunstall objects that because the mandatory Guidelines had “the force and effect of laws, ” they are subject to a vagueness challenge. (Objections, ECF No. 71, PageID 384, quoting United States v. Booker, 543 U.S. 220, 234 (2005). He relies on Hill v. Masters, 836 F.3d 591 (6th Cir. Sept. 7, 2016), where the Sixth Circuit granted habeas corpus relief under 28 U.S.C. § 2241 to a defendant sentenced under the mandatory pre-Booker Guidelines. Tunstall emphasizes that the pre-Booker Guidelines had the “force of law” and a court “did not have discretion to impose a sentence other than a Guidelines range one. . . .” (ECF No. 71, PageID 385-86.)

         The United States has responded to the Objections by asserting that Tunstall's § 2255 Motion is barred (1) as a second or successive application under 28 U.S.C. § 2255(h) and (2) by Teague v. Lane, 489 U.S. 288 (1989)(Response, ECF No. 75). Tunstall replies[3] that he obtained permission to file a second or successive application as required by § 2255(h) and his challenge is under Johnson, which stated a substantive rule made retroactive by the Supreme Court (Reply, ECF No. 76).

         Analysis

         The Asserted Second-or-Successive Bar

         The instant § 2255 Motion is Mr. Tunstall's second-or-successive application for relief under that statute (See first motion at ECF No. 42). Tunstall accordingly applied to the circuit court for permission to proceed and asked this Court to hold his instant Motion in abeyance pending a Sixth Circuit decision on that motion (ECF No. 57). The Sixth Circuit concluded he met 28 U.S.C. § 2244(b) requirements and permitted him to proceed in this Court, albeit with instructions to us to hold the case in abeyance until Beckles was decided. In re: Donnie Tunstall, Case No. 16-3582 (6th Cir. Sept. 7, 2016)(unreported, copy at ECF No. 62). As instructed, this Court held the Motion in abeyance until Beckles was handed down in March (See ECF No. 60, 63).

         The Government notes that the Sixth Circuit's decision held only that Tunstall had made a prima facie § 2244(b) showing and that this Court is “free to decide for itself whether [Tunstall's] claim relies on a new rule made retroactive by the Supreme Court.” (Response, ECF No. 75, PageID 397, quoting In re Embry, 831 F.3d 377, 378 (6th Cir. 2016). Tunstall replies that this Court cannot second guess the Sixth Circuit's exercise of its § 2244(b) gatekeeping function, but concedes we can decide whether Tunstall is claiming under a new rule made retroactive by the Supreme Court.

         The Magistrate Judge agrees this Court may not re-perform the circuit court's gatekeeping function. However, that Court's second-or-successive authorization requires us to decide the merits of Tunstall's Motion, including the retroactivity question.

         The Asserted Teague v. Lane Bar

         The Government asserts that § 2255 relief is barred here by Teague v. Lane, supra, which held that new rules of criminal procedure would not apply to cases on collateral review (i.e., cases where the judgment became final before the rule was announced) unless they were “watershed” rules.[4] The United States claims a rule allowing vagueness challenges to pre-Booker guidelines would be (1) new, (2) procedural, and (3) not a watershed. (Response, ECF No. 75, PageID 408-10.

         Tunstall replies that he has relied all along on Johnson and both the Sixth Circuit and the Supreme Court have held that Johnson announced a new substantive rule to which Teague does not apply. (Reply, ECF No. 76, PageID 416, citing In re Watkins, 810 F.3d 375, 380 (6th Cir. 2015), and Welch v. United States, 136 S.Ct. 1257, 1268 (2016).)

         The Magistrate Judge agrees that Johnson has been classified by relevant precedent as having adopted a new substantive rule, applicable on collateral review.

         The Merits: Does Tunstall Have a Valid ...


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