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United States v. Oliver

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

April 20, 2018

JOHN E. OLIVER, Petitioner.


         Petitioner, 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).[1] 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.


         On 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.)[2] 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).

         By 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. § 2255(f).

         II. ANALYSIS

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

         The 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:[3]

Claim One: "In light of Johnson, Mr. Oliver does not qualify as a career offender." (ECF No. 271, at 5 (emphasis omitted) (capitalization corrected).)

         The 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)).

         To 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.

         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.[4] 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.[5] 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).

         Despite 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).

         B. Petitioner's § 2255 Motion is Untimely

         Even if 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 ...

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