United States District Court, W.D. Virginia, Charlottesville Division
MEMORANDUM OPINION
NORMAN
K. MOON UNITED STATES DISTRICT JUDGE
Petitioner
is challenging his being sentenced as a career offender under
§§ 4B1.1 and 4B1.2 of the United States Sentencing
Guidelines. He argues that the Supreme Court decision in
Johnson v. United States, 135 S.Ct. 2551 (2015)
[hereinafter “Johnson II”] made the
residual clause of §4B1.2 unconstitutionally vague, and
that no other clause of § 4B1.2 qualified him as a
career offender. Further, Petitioner argues his claim is not
barred by the recent decision in Beckles v. United
States, 137 S.Ct. 886, 890 (2017) because that case
related to the current advisory Sentencing
Guidelines, while he was sentenced when the Guidelines were
still mandatory.
I
decide that Petitioner's claims are procedurally barred
by 28 U.S.C. § 2255(f)(3) as untimely and by 28 U.S.C.
§ 2255(h)(2) as an improper successive petition.
Petitioner's attempt to implicate Johnson II as
a means around the procedural roadblocks of § 2255 fails
because Johnson II's holding applies to
individuals sentenced pursuant to the Armed Career Criminal
Act, 18 U.S.C. § 924(e) (“ACCA”) rather than
individuals such as Petitioner who were sentenced under
§ 4B1.1 of the mandatory Sentencing Guidelines.
I.
Factual Background
This
Court sentenced Petitioner Charles Mitchell to a term of 262
months on November 6, 2000, for a jury conviction for
distribution of crack cocaine. (Judgment at 2). That sentence
was based on a finding that he was a career offender under
U.S.S.G. §§ 4B1.1 and 4B1.2. (See PSR
¶ 17). The docket does not make clear which of his prior
offenses were counted for career offender purposes. (See
id. (finding Petitioner was a career offender because
“defendant has at least two prior felony convictions of
either a crime of violence or a controlled substance
offense”)). It is not contested that Petitioner had a
prior controlled substance offense conviction in April 1993,
providing one of the two necessary prior felony convictions
under § 4B1.1. Petitioner had two other felony
convictions under New Jersey law at the time of his
sentencing: a 1990 conviction for Robbery, and a 1998
conviction for Assault by Motor Vehicle. (PSR ¶¶
21, 24). Petitioner now argues that neither of these
convictions were a “crime of violence, ” giving
him only one prior qualifying conviction at the time of
sentencing, and making the Court's career offender
determination incorrect. Petitioner argues that if he were
resentenced today without the career offender designation,
his guideline range would be 92-115 months. Because
Petitioner has already served an amount in excess of 115
months, he seeks his immediate release.
II.
Legal Background
Petitioner
was sentenced in November 2000 under § 4B1.1 of the
United States Sentencing Guidelines as a “career
offender” because he had committed at least two prior
“crimes of violence.” Section 4B1.2 defined a
“crime of violence” as one “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 [known as
the force clause]; or
(2) is burglary of a dwelling, arson, or extortion, involves
use of explosives [known as the enumerated offenses clause],
or otherwise involves conduct that presents a serious
potential risk of physical injury to another [known as the
residual clause].
U.S.S.G. § 4B1.2 (2000).
The
ACCA, in 18 U.S.C. § 924(e) had an identical provision
for labeling crimes as a “violent felony.” In
2010, the Supreme Court in Johnson v. United States,
559 U.S. 133 (2010) [hereinafter “Johnson
I”] held that the term “physical
force” in the force clause of the ACCA “means
violent force - that is, force capable of causing physical
pain or injury to another person.” Johnson I,
559 U.S. at 140. In 2015, Johnson II held that the
residual clause of the ACCA was unconstitutionally vague in
violation of the Due Process Clause of the Constitution.
Johnson II, 135 S.Ct. at 2557. In Welch v.
United States, 136 S.Ct. 1257 (2016), the Supreme Court
determined that Johnson II announced a new
substantive rule that applied retroactively on collateral
review. However, in 2017, the Supreme Court held that the
identical residual clause found in the advisory Sentencing
Guidelines could not be challenged on vagueness grounds
because the guidelines were not a statute that fixed
sentences. Beckles v. United States, 137 S.Ct. 886,
890 (2017).
Petitioner
was sentenced under the mandatory Sentencing
Guidelines, which were not addressed in Beckles
because they were no longer in effect when Travis Beckles was
sentenced. The mandatory sentencing guidelines were abolished
by United States v. Booker, 543 U.S. 220 (2005) on
the grounds that they violated the Sixth Amendment by
allowing judges to increase sentences based on factual
findings not made by a jury. See Booker, 543 U.S. at
244. Petitioner argues that his mandatory,
pre-Booker sentence as a career offender is
unconstitutional under the residual clause after Johnson
II and Welch, and that Beckles
supports this conclusion. He further argues that neither of
his felony convictions were for crimes involving
“physical force” under Johnson I.
III.
28 U.S.C. § 2255 Procedural Hurdles
Before
the Court can consider Petitioner's claim on the merits,
it must first consider whether he clears the procedural
hurdles set by 28 U.S.C. § 2255. Section 2255(f) states
that “[a] 1-year period of limitation shall apply to a
motion under this section.” There are several
alternative starting points for the running of this one-year
period found in 28 U.S.C. § 2255(f)(1)-(4). The relevant
one for the purpose of this motion is § 2255(f)(3),
which begins the limitations period on “the date on
which the right asserted was initially recognized ...