WITHDRAWAL OF PRIOR REPORTS; SUBSTITUTED REPORT AND RECOMMENDATIONS

MICHAEL R. MERZ, Magistrate Judge.

This case is before the Court on Plaintiff's Objections (ECF No. 85) to the Magistrate Judge's Report and Recommendations (ECF No. 81) and Supplemental Report and Recommendations (ECF No. 84) which recommended that Mr. Tunstall's § 2255 Motion be granted. Judge Rice has recommitted the case for reconsideration in light of the Objections (ECF No. 88). Defendant has not responded to the Objections and his time to do so expired on August 25, 2017.

Donnie Tunstall was sentenced before the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005). In Booker the Court decided that the Sentencing Guidelines governing sentencing for federal felony offenses could be held to constitutional only if they were construed as advisory. Prior to Booker, the Guidelines had been held to be mandatory. In the Reports objected to, the Magistrate Judge had analyzed the pre-Booker mandatory Guidelines as sufficiently analogous to a criminal statute as to be subject to challenge under the void for vagueness doctrine applied by the Supreme Court to the Armed Career Criminal Act's residual clause in Johnson v. United States, 135 S.Ct. 2551 (2015)("Johnson 2015"). Compare Beckles v. United States, 137 S.Ct. 886 (2017), holding the post-Booker advisory Guidelines are not subject to a vagueness challenge.

The Government's Objections are supported by citation to United States v. Raybon, ___ F.3d ___, 2017 WL 3470389 (6th Cir. Aug. 14, 2017)(copy at ECF No. 89). In Raybon the Sixth Circuit decided that the defendant's § 2255 motion was untimely because it was filed more than one year after his conviction became final (Slip opinion at 4). Raybon had claimed his motion was timely because it was based on Johnson 2015 and filed within one year of that decision. Id. The Sixth Circuit rejected this argument because it found that the question whether Johnson 2015 applies to the mandatory pre-Booker Guidelines "is an open question." Id. at slip opinion page 5. The court continued:

Id.

Tunstall's conviction became final ninety days1 after the Sixth Circuit affirmed his conviction on October 24, 2002. United States v. Tunstall, Case No. 01-3515, 49 Fed. Appx. 581 (6th Cir. Oct. 24, 2002). His instant § 2255 Motion was not filed until June 3, 2016, more than eleven years later and is therefore untimely. It should be dismissed with prejudice on that basis.

Therefore the pending Report and Recommendations (ECF No. 81) and the Supplemental Report and Recommendations (ECF No. 84) are WITHDRAWN and it is now respectfully recommended that the instant § 2255 Motion to Vacate (ECF No. 42) be DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis.