United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
McConnell, a federal inmate proceeding with counsel, after
receiving permission from the United States Court of Appeals
for the Fourth Circuit, submitted this successive motion
under 28 U.S.C. § 2255 to vacate, set aside, or correct
his sentence ("§ 2255 Motion, " ECF No. 81).
McConnell argues that in light of the Supreme Court's
ruling in Johnson v. United States, 135 S.Ct. 2551
(2015), his guidelines sentence is unconstitutional.
(Id. at 2.) The Government has responded. (ECF No.
87.) McConnell has replied. (ECF No. 88.) For the reasons set
forth below, the Court will dismiss McConnell's §
2255 Motion as barred by 28 U.S.C. § 2255(h)(2) and as
pled guilty to possession with intent to distribute fifty
(50) grams or more of cocaine base. (Presentence Report
("PSR") ¶¶ 1-2.) In the PSR, the
probation officer found McConnell to be a career offender
because the offense of conviction was a controlled substance
offense and McConnell had been previously convicted of two
crimes of violence, which were two robbery convictions from
New York. (Id. mi 15, 18, 25.) Because of his career
offender designation, McConnell had a United States
Sentencing Guidelines ("USSG") range of 262 to 327
months of imprisonment. (Id. ¶ 25.) On March
17, 1998, the Court sentenced McConnell to 262 months of
imprisonment. At the time of his sentencing, the USSG were
deemed mandatory. See United States v. Booker, 543
U.S. 220, 233 (2005).
Memorandum Opinion and Order entered on April 24, 2001, the
Court denied a 28 U.S.C. § 2255 motion filed by
McConnell. (ECF Nos. 50, 51.) On June 27, 2016, the Fourth
Circuit granted McConnell authorization to file this
successive § 2255 Motion. (See ECF No. 79, at
1.) As discussed below, McConnell's claim is procedurally
barred by 28 U.S.C. 2255(h)(2) and by 28 U.S.C. §
2255(f)(3) as untimely.
McConnell Fails To Satisfy The Standard For Successive §
Fourth Circuit granted McConnell pre-filing authorization to
file a successive motion in this Court pursuant to 28 U.S.C.
§ 2255(h)(2). Under § 2255(h)(2), McConnell must
demonstrate that his claim is based upon "a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable." 28 U.S.C. § 2255(h)(2). In his §
2255 Motion, McConnell raises entitlement to relief based
upon the following claim:
Claim One: "In light of Johnson, Mr. McConnell
does not qualify as a career offender." (§ 2255
Mot. 5 (emphasis omitted and capitalization corrected).)
Fourth Circuit's determination that McConnell satisfies
§ 2255(h) "is 'tentative in the following
sense: the district court must dismiss the motion that [the
Fourth Circuit has] allowed the applicant to file, without
reaching the merits of the motion, if the court finds that
the movant has not satisfied the requirements for the filing
of such a motion.'" McLeod v. Peguese, 337
Fed.Appx. 316, 324 (4th Cir. 2009) (quoting Bennett v.
United States, 119 F.3d 468, 470 (7th Cir. 1997)). Thus,
it is necessary to examine McConnell's claim and dismiss
it, if the Court finds that it is barred under §
2255(h). See United States v. MacDonald, 641 F.3d
596, 604 (4th Cir. 2011) (citing United States v.
Winestock, 340 F.3d 200, 205 (4th Cir. 2003)).
satisfy 28 U.S.C § 2255(h)(2), McConnell must
demonstrate: (1) the rule announced in Johnson v. United
States, 135 S.Ct. 2551 (2015), constitutes a new rule of
constitutional law that was previously unavailable; and (2)
the Supreme Court has made the rule announced in
Johnson retroactive to cases on collateral review.
As explained below, McConnell fails to satisfy these
requirements because the Supreme Court has neither extended
the rule in Johnson to Sentencing Guidelines
challenges, nor made such an extension retroactive.
Johnson, the Supreme Court held "that imposing
an increased sentence under the residual clause of the Armed
Career Criminal Act [("ACCA")] violates the
Constitution's guarantee of due process." 135 S.Ct.
at 2563.In Welch v. United States, 136
S.Ct. 1257 (2016), the Supreme Court held that
"Johnson announced a substantive rule of law
that has retroactive effect in cases on collateral
review." Id. at 1268. McConnell now argues that
Johnson invalidated the identically worded
"residual clause" in United States Sentencing
Guidelines ("USSG") § 4B1.2.
after McConnell filed his § 2255 Motion, the Supreme
Court, in Beckles v. United States, 137 S.Ct. 886
(2017), refused to extend Johnson's holding to the
similar residual clause found in the advisory guidelines,
USSG § 4B1.2(a)(2). See Beckles, 137 S.Ct. at
892; United States v. Lee, 855 F.3d 244, 246-47 (4th
Cir. 2017) (citation omitted).
the Supreme Court's explicit refusal to extend
Johnson's holding to the Sentencing Guidelines, McConnell
argues that Beckles only applied to the advisory
Sentencing Guidelines, and his mandatory, pre-Booker
sentence as a career offender is unconstitutional under
Johnson and Welch. He argues that
Johnson invalidated the identically worded
"residual clause" in USSG § 4B1.2, and because
robbery is not an enumerated offense in § 4B1.2 and
because New York robbery fails to satisfy the force clause of
that guideline, he no longer has two predicate "crimes
of violence" to find him a career ...