United States District Court, E.D. Virginia, Richmond Division
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. 276). Petitioner 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. (§ 2255 Mot. 5-11.) The Government
has responded. (ECF No. 281.) Petitioner has replied. (ECF
No. 284.) For the reasons set forth below, the Court will
deny Petitioner's § 2255 Motion as barred by 28
U.S.C. § 2255(h)(2) and untimely.
February 9, 2000, Petitioner pled guilty to conspiracy to
possess with intent to distribute at least one kilogram of
methamphetamine. (Presentence Report (hereinafter,
"PSR"), at 1.) The probation officer prepared a PSR
for Petitioner prior to sentencing. In the PSR, the probation
officer found Petitioner to be a career offender because the
offense of conviction was a felony controlled substance
offense and Petitioner previously had been convicted of at
least two prior felony convictions of either a crime of
violence or a controlled substance offense. (Id.
¶ 129.) Based on the career offender enhancement,
Petitioner's Offense Level Total was 34 and his Criminal
History Category increased from Level III to Level VI.
(See Id. Wksht D, at 1.) Petitioner's sentencing
guidelines range was 262 to 327 months of incarceration.
(Id.) At the time Petitioner was sentenced, the
United States Sentencing Guidelines ("USSG") were
deemed mandatory. See United States v. Booker, 543
U.S. 220, 233 (2005).
Order entered on May 23, 2002, the Court denied
Petitioner's first 28 U.S.C. § 2255 motion.
(See ECF No. 227.) On July 12, 2016, the United
States Court of Appeals for the Fourth Circuit granted
Petitioner authorization to file this successive § 2255
motion. (ECF No. 274, at 1.) As discussed below,
Petitioner's claim is barred by 28 U.S.C. §
2255(h)(2) as successive and is untimely under 28 U.S.C.
Petitioner Fails to Satisfy the Standard for Successive
§ 2255 Motions
Fourth Circuit granted Petitioner pre-filing authorization to
file a successive motion in this Court pursuant to 28 U.S.C.
§ 2255(h)(2). Under § 2255(h)(2), Petitioner 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, Petitioner raises entitlement to relief based
upon the following claim:
Claim One: "In light of Johnson, Mr. Oliver
does not qualify as a career offender." (ECF No. 271, at
5 (emphasis omitted) (capitalization corrected).)
Fourth Circuit's determination that Petitioner 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 Petitioner'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), Petitioner 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, Petitioner 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. Petitioner now argues
that Johnson invalidated the identically worded
"residual clause" in United States Sentencing
Guidelines ("USSG") § 4B1.2. However, after
Petitioner 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] § 4B 1.2(a)(2). Beckles, 137 S.Ct. at
892; see United States v. Lee, 855 F.3d 244, 246-47
(4th Cir. 2017) (applying Beckles).
the Supreme Court's explicit refusal to extend
Johnson's holding to the Sentencing Guidelines,
Petitioner argues that Beckles only applied to the
advisory Sentencing Guidelines, and his mandatory,
prz-Booker sentence as a career offender is
unconstitutional under Johnson. (Reply 7-14, ECF No.
284.) He argues that Johnson invalidated the
identically worded "residual clause" in USSG §
4B1.2, and he no longer has two predicate "crimes of
violence" to find him a career offender. However,
Petitioner's attempt to utilize Johnson as a
means around the procedural roadblock of § 2255(h)(2)
fails. Contrary to Petitioner's assertion,
Johnson's holding applies to sentence
enhancements pursuant to ACCA, rather than sentence
enhancements under § 4B1.1 under a then-mandatory
Sentencing Guidelines regime. See United States
v. Gholson, No. 3:99CR178, 2017 WL 6031812, at *3 (E.D.
Va. Dec. 5, 2017); United States v. Bowens,
No. 3:98CR110, 2017 WL 4533129, at *3 (E.D. Va. Oct. 10,
2017); Mitchell v. United States, No. 3:00-CR-00014,
2017 WL 2275092, *1, *5 n.5 (W.D. Va. May 24, 2017); cf.
United States v. Brown, 868 F.3d 297, 303 (4th Cir.
2017) (explaining that "Johnson only recognized
that ACCA's residual clause was unconstitutionally
vague" and "it did not touch upon the residual
clause" of the Sentencing Guidelines). Accordingly,
because Johnson fails to extend to Petitioner's
sentence pursuant to the Sentencing Guidelines, he fails to
satisfy the requirements of § 2255(h)(2). Thus,
Petitioner's § 2255 Motion is an improper,
successive motion under § 2255(h)(2).
Petitioner's § 2255 Motion is
Petitioner's § 2255 Motion was not an improper,
successive § 2255 motion, it would also be barred by the
statute of limitations. Section 101 of the Antiterrorism and
Effective Death Penalty Act ("AEDPA") amended 28
U.S.C. § 2255 to establish a one-year period of
limitation for the ...