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United States v. Marshall

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

October 31, 2017

UNITED STATES OF AMERICA,
v.
KALVIN MARSHALL, Petitioner. Criminal Action

          MEMORANDUM OPINION

          HENRY E. HUDSON, UNITED STATES DISTRICT JUDGE.

         Kalvin Marshall, a federal inmate proceeding with counsel, submitted this successive motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("§ 2255 Motion, " ECF No. 194). Marshall 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. (Mat 3.) The Government has responded. (ECF No. 200.) Marshall has replied. (ECF No. 201.) For the reasons set forth below, the Court will dismiss Marshall's § 2255 Motion as both procedurally barred and untimely.

         I. PROCEDURAL HISTORY

         Marshall was convicted of conspiracy to distribute in excess of 50 grams crack cocaine (Count One) and being a felon in possession of a firearm (Count Five). The probation office prepared a Presentence Report ("PSR") for Marshall prior to sentencing. In the PSR, the probation officer determined that Marshall was a career offender. (PSR ¶ 36.) Based on the career offender enhancement, Marshall's criminal history category increased from Level V to Level VI. (Id. Wksht C, at 2; Wksht D, at 1.) Marshall's total offense level of 42 was driven by characteristics of the offense, such as drug quantity and possession of a dangerous weapon, and was not based on the finding that he was a career offender. (Id. Wksht A, at 1; Wksht D, at 1.) Marshall's sentencing guidelines range was 360 months to life in prison. (Id. Wkst D, at 1.) At the time Marshall was sentenced, the United States Sentencing Guidelines ("USSG") were deemed mandatory. See United States v. Booker, 543 U.S. 220, 233 (2005). On January 24, 2003, the Court sentenced Marshall to 384 months on Count One and 120 months on Count Five, both sentences to run concurrently. (ECF No. 52.)

         On November 28, 2003, Marshall submitted a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 ("First § 2255 Motion"), which the Court docketed on December 5, 2003. (ECF No. 67.) By Memorandum Opinion and Order entered on June 18, 2004, the Court denied Marshall's First § 2255 Motion. (See ECF Nos. 72, 73.) Since that time, Marshall has filed several unauthorized second or successive § 2255 motions. (See, e.g., ECF Nos. 104, 105, 111, 112.)

         More recently, Marshall sought permission from the Fourth Circuit to file a successive § 2255 motion based upon the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). On June 27, 2016, the Fourth Circuit granted Marshall authorization to file the instant, successive § 2255 Motion. (See ECF No. 193, at 1.) As discussed below, Marshall's § 2255 Motion is procedurally barred pursuant to 28 U.S.C. § 2255(h)(2) and untimely pursuant to 28 U.S.C. § 2255(f)(3).

         II. ANALYSIS

         A. Marshall Fails to Satisfy the Standard for Successive § 2255 Motions

         The Fourth Circuit granted Marshall pre-filing authorization to file a successive motion in this Court pursuant to 28 U.S.C. § 2255(h)(2). Under § 2255(h)(2), Marshall 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, Marshall raises entitlement to relief based upon the following claim:

Claim One: "In light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (June 26, 2015), Mr. Marshall no longer is a career offender because his prior West Virginia and New York convictions no longer qualify as 'crimes of violence.'" (§ 2255 Mot. 3.)

         The Fourth Circuit's pre-filing determination that Marshall 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.'" McLeodv. 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 Marshall's claim and to 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), Marshall must demonstrate that: (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, Marshall 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. Marshall now argues that Johnson invalidated the identically worded "residual clause" in United States Sentencing Guidelines ("USSG") § 4B1.2.[2] However, after Marshall filed his § 2255 Motion, the Supreme Court, in Beckles v. United States, 137 S.Ct. 886 (2017), refused to apply Johnson's holding to the similar residual clause found in the Sentencing Guidelines, [USSG] § 4B 1.2(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, Marshall argues that Beckles only applied in the context of the current, advisory Sentencing Guidelines, and that his mandatory, pit-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 that, because his West Virginia and Virginia offenses are not enumerated offenses in § 4B1.2, and because these offenses fail to satisfy the "force clause" of that guideline, he no longer has two predicate "crimes of violence" to render him ...


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