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United States v. Gholson

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

December 5, 2017

UNITED STATES OF AMERICA
v.
CHARLES A. GHOLSON, Petitioner.

          MEMORANDUM OPINION

          M. HANNAH LAUCK UNITED STATES DISTRICT JUDGE.

         Charles A. Gholson, 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. 107) and a Memorandum in Support (ECF No. 117). Gholson 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. (Mem. Supp. § 2255 Mot. 1-2.) The Government has responded. (ECF No. 121.) Gholson has replied. (ECF No. 124.) For the reasons set forth below, the Court will deny Gholson's § 2255 Motion as barred by 28 U.S.C. § 2255(h)(2) and untimely.

         I. PROCEDURAL HISTORY

         A grand jury charged Gholson with conspiracy to distribute crack cocaine and cocaine (Count One), two counts of possession with intent to distribute crack cocaine (Counts Two and Four), possession of crack cocaine, cocaine, and marijuana (Counts Three, Five and Six), possession of a firearm by a convicted felon (Count Seven), possession of a firearm by an illegal drug user (Count Eight), and possession of firearm in furtherance of a drug trafficking crime (Count Nine). (Indictment 1-5, ECF No. 1.) On November 3, 1999, the Government filed a notice pursuant to 21 U.S.C. § 851, that informed Gholson that it would seek an enhanced sentence under 21 U.S.C. § 841 for Count Two due to his prior conviction of a felony drug offense. (ECF No. 27, at 1.) On November 22, 1999, Gholson pled guilty to Count Two of the Indictment. (Plea Agreement 1, ECF No. 33.) The probation office prepared a Presentence Report ("PSR") for Gholson prior to sentencing. In the PSR, the probation officer found Gholson to be a career offender because the offense of conviction was a felony controlled substance offense and Gholson had previously been convicted of at least two prior felony convictions of either a crime of violence or a controlled substance offense. (PSR 152.)[1]Based on the career offender enhancement, Gholson's criminal history category increased from Level V to Level VI. (Id. Wksht C, at 2; Wksht D, at 1.) Gholson's total offense level of 34 was based on the finding that he was a career offender, with three points deducted for acceptance of responsibility. (Id. Wksht D, at 1.) Gholson's sentencing guidelines range was 262 to 327 months of incarceration. (Id.) At the time Gholson was sentenced, the United States Sentencing Guidelines ("USSG") were deemed mandatory. See United States v. Booker, 543 U.S. 220, 233 (2005).

         On August 4, 2000, the Court sentenced Gholson to 262 months of incarceration. (J. 2, ECF No. 58.) On June 18, 2001, the United States Court of Appeals for the Fourth Circuit affirmed Gholson's conviction and sentence. United States v. Gholson, 13 Fed.Appx. 77, 77 (4th Cir. 2001).

         On November 19, 2004, Gholson filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (ECF No. 86.) By Memorandum Opinion and Order entered on May 3, 2007, the Court denied Gholson's § 2255 motion. (See ECF Nos. 93, 94.) Since that time, Gholson has filed at least one unauthorized second or successive § 2255 motion. (See ECF Nos. 98, 99 & 100.)

         Thereafter, Gholson sought permission from the Fourth Circuit to file a successive § 2255 motion based upon the Supreme Court's decision in Johnson, On July 26, 2016, the Fourth Circuit granted Gholson's authorization to file this successive § 2255 motion. (See ECF No. 108, at 1.) As discussed below, Gholson's claim is procedurally barred by 28 U.S.C. § 2255(h)(2) as successive and by 28 U.S.C. § 2255(f)(3) as untimely.

         II. ANALYSIS

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

         The Fourth Circuit granted Gholson pre-filing authorization to file a successive motion in this Court pursuant to 28 U.S.C. § 2255(h)(2). Under § 2255(h)(2), Gholson 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, Gholson 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 (2015), Mr. Gholson is no longer a career offender because his prior conviction for attempted aggravated sexual battery no longer qualifies as a 'crime of violence.'" (Mem. Supp. § 2255 Mot. 2.)

         The Fourth Circuit's determination that Gholson 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 Gholson'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), Gholson 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, Gholson 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.[2] 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. Gholson now argues that Johnson invalidated the identically worded "residual clause" in United States Sentencing Guidelines ("USSG") § 4B1.2.[3] However, after Gholson 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 ...


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