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United States v. McConnell

United States District Court, E.D. Virginia, Richmond Division

October 25, 2017

UNITED STATES OF AMERICA
v.
JACKIE McCONNELL

          MEMORANDUM OPINION

          Robert E. Payne Senior United States District Judge

         Jackie 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 untimely.

         I. PROCEDURAL HISTORY

         McConnell 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).

         By 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.

         II. ANALYSIS

         A. McConnell Fails To Satisfy The Standard For Successive § 2255 Motions

         The 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).)

         The 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)).

         To 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.

         In 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.[1]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.[2]

         However, 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).

         Despite 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 ...


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