Mitchell v. United States

          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 ...