United States District Court, E.D. Virginia, Richmond Division
Hannah Lauck United States District Judge
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. 525). 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. 533.) Petitioner has replied. (ECF
No. 536.) 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.
November 27, 1995, Petitioner was found guilty of conspiracy
to distribute heroin and cocaine base. (Presentence Report
(hereinafter, "PSR"), ¶ 4.) 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. ¶ 64.) However, because "the
total offense level for [Petitioner's] instant offense
[was] greater than the career offender guideline, the career
offender guideline was not applicable in [Petitioner's]
case." (Id.) Without the career offender
enhancement, Petitioner's Offense Level Total was 38.
(See Id. Wksht D, at 1.) Petitioner's sentencing
guidelines range was 360 months of incarceration to life
imprisonment. (Id.) On February 22, 1996, the Court
entered judgment against Petitioner and sentenced him to 384
months of imprisonment. (See ECF No. 234.) 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).
1, 2015, Petitioner moved the Court for a reduction of his
sentence pursuant to Amendment 782 to the Sentencing
Guidelines. (ECF No. 501.) The Court denied the motion,
concluding that, "[u]nder Amendment 782,
[Petitioner's] new base offense level based solely on his
drug weight would be a level 28. Because that base offense
level is less than the career offender base offense level of
34... the offense level under the career offender guidelines
applies." (ECF No. 517, at 1 (citing U.S.S.G. §
4B1.1(b).) Therefore, although Petitioner was not originally
sentenced under the career offender guideline, his status as
a career offender currently controls.
Memorandum Opinion and Order entered on June 13, 2000, the
Court denied Petitioner's first 28 U.S.C. § 2255
motion. (See ECF No. 352-53.) On June 22, 2016, the
United States Court of Appeals for the Fourth Circuit granted
Petitioner authorization to file this successive § 2255
motion. (ECF No. 522, at 1.)
Petitioner Fails to Satisfy the Standard for Successive S
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. Hopkins
does not qualify as a career offender." (§ 2255
Mot. 5 (capitalization corrected) (emphasis omitted).)
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. (§ 2255 Mot.
6.) 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 § 4B1.2(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,
pre-Booker sentence as a career offender is
unconstitutional under Johnson and Welch.
(Reply 8-15, ECF No. 536.) He argues that Johnson
invalidated the identically worded "residual
clause" in USSG § 4B1.2, therefore 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 the then-mandatory
Sentencing Guidelines regime. See United States v.
Gholson, No. 3;99CRI78, 2017 WL 6031812, at *3 (E.D. Va.
Dec. 5, 2017); United States v. Bowens, No. 3;98CRl
10, 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 ...