United States District Court, E.D. Virginia, Richmond Division
HANNAH LAUCK UNITED STATES DISTRICT JUDGE.
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.
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.)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).
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).
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
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.
Gholson Fails to Satisfy the Standard for Successive §
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.)
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)).
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.
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. Gholson now argues that
Johnson invalidated the identically worded
"residual clause" in United States Sentencing
Guidelines ("USSG") § 4B1.2. 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 ...