United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad United States District Judge
Clyde Mixson, a federal inmate proceeding pro se,
has submitted a pleading in this closed criminal case that he
titles: “MOTION TO VACATE VOID JUDGMENT” (ECF No.
108). After review of the record in this case and
Mixson's current submission, the court concludes that his
motion must be construed and dismissed as a successive motion
under 28 U.S.C. § 2255.
March 2009, Mixson pleaded guilty, pursuant to a written plea
agreement, to being a felon in possession of a firearm.
See 18 U.S.C. §§ 922(g)(1) and 924(e). The
presentence investigation report (“PSR”)
recommended a total offense level of 30 because Mixson
qualified for a sentence enhancement under the Armed Career
Criminal Act (“ACCA”), § 924(e). The PSR
listed the following prior felony convictions to support the
ACCA enhancement: nine convictions for Virginia statutory
burglary; two convictions for North Carolina breaking and
entering; and one conviction for conspiracy to distribute
methamphetamine. The PSR recommended a criminal history
category of V, resulting in a guideline imprisonment range of
180 to 188 months. On June 19, 2009, the court adopted the
PSR recommendations and sentenced Mixson to 180 months in
prison. Mixson did not appeal.
January 2012, Mixson filed a § 2255 motion, alleging
that the court erred in refusing to permit him to withdraw
his guilty plea and that counsel provided ineffective
assistance related to the plea and the impact of the
presentence report. By opinion and order entered June 21,
2010, the court denied relief under § 2255, and
Mixson's appeal was dismissed.
2016, Mixson sought and was granted certification from the
United States Court of Appeals for the Fourth Circuit to file
a successive § 2255 motion under Johnson v. United
States, 135 S.Ct. 2551 (2015). He asserted in this
motion that following the Johnson decision, his
sentence was unlawful because he no longer had the requisite
type and/or number of prior convictions to support an ACCA
enhancement. The court denied Mixson's § 2255 motion
by opinion and order entered June 23, 2017. United States
v. Mixson, No. 7:08CR00043/7:16CV81161, 2017 WL 2735600
(W.D. Va. 2017). Specifically, the court held that although
Mixson's Virginia burglary convictions no longer
qualified as predicates for an ACCA enhancement, the
enhancement remained lawful based on Mixson's two prior
North Carolina breaking and entering convictions and his
prior drug conviction. Id. at *4-5. Mixson's
appeal is pending.
30, 2017, the court received Mixson's current motion to
vacate and a motion for appointment of counsel. Mixson
erroneously states that the court's June 23 opinion and
order “vacated” his nine prior Virginia burglary
convictions. On that basis, he contends that he should be
resentenced without having these prior convictions included
in the calculation of his criminal history category. He also
contends that his 1989 convictions for North Carolina
breaking and entering and his 1989 drug distribution
conviction are too old to count toward an ACCA enhancement.
did not raise these sentencing error claims in his prior
§ 2255 motions. In other words, he is now contending
that, for different reasons than he has previously argued,
his ACCA sentence is unlawful. A post-judgment motion that
raises such new claims under § 2255 is so substantially
similar to a successive habeas petition that it must be
construed and disposed of as such, and may not be addressed
as a motion to reopen a prior § 2255 proceeding.
Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005).
court may consider a successive § 2255 motion only upon
specific certification from the United States Court of
Appeals for the Fourth Circuit. See 28 U.S.C. §
2255(h). Mixson offers no indication that he has obtained
certification from the court of appeals to file a successive
§ 2255 motion regarding these new sentencing claims.
Therefore, the court will summarily dismiss Mixson's
current motion to vacate without prejudice as a
successive. A separate order will be entered this day.
clerk is directed to send copies of this memorandum opinion
and accompanying order to the defendant.
 In any event, Mixson's claims in
the current motion are without merit. The court did not, and
could not in a § 2255 motion, vacate his prior Virginia
burglary convictions that were lawfully counted in the
calculation of his criminal history category. Moreover,
§ 924(e) does not limit predicates for an ACCA
enhancement to those prior sentences imposed no more than
fifteen years before the federal offense. See U.S.
Sentencing Guidelines Manual § 4B1.4 cmt. n. 1
(U.S. Sentencing Comm'n 2008) (noting that “time
periods for the counting of prior sentences under §