United States District Court, W.D. Virginia, Roanoke Division
Jackson L. Kiser Senior United States District Judge.
Hayden, a federal inmate, has filed an authorized successive
motion to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255, arguing that his designation as a
career offender under United States Sentencing Guideline
("U.S.S.G.") §§ 4B1.1 and 4B 1.2, is
unlawful. In a July 13, 2016 Order, the court stayed the case
pending a decision by the Supreme Court in Beckles v.
United States, No. 15-8544. Following the Supreme
Court's decision in Beckles, 137 S.Ct. 886
(2017), the case was again stayed pending resolution by the
United States Court of Appeals for the Fourth Circuit in
United States v. Brown, No. 16-7056. Brown,
too, now has been decided. 868 F.3d 297 (4th Cir. 2017). Based on
those decisions, and a review of the complete record, I must
dismiss Hayden's § 2255 motion as untimely.
was convicted, following a jury trial, of conspiracy to
possess with intent to distribute cocaine base, in violation
of 21 U.S.C. § 846. Hayden's Presentence
Investigation Report ("PSR") recommended that he
receive an increased sentence because he qualified as a
career offender, in that he had at least two prior
convictions for a crime of violence and/or a controlled
substance offense, pursuant to U.S.S.G. § 4B1.1. (PSR
¶ 43 [ECF No. 191].) The predicate 4i offenses
supporting his status as a career offender included a prior
Virginia conviction for robbery and a prior Virginia
conviction for felonious bodily injury to a prison official.
(Id. ¶¶ 58 and 62.) On November 21, 1994,
after adopting the PSR and concluding that he was a career
offender, I sentenced Hayden to a total of 360 months'
incarceration. Hay den appealed, but the Fourth Circuit
affirmed his conviction and sentence. United States v.
Hayden, 85 F.3d 153, 156 (4th Cir. 1996).
to Standing Order 2015-5, I appointed the Federal Public
Defender's Office to represent Hayden and provide
briefing, if necessary, in light of the Supreme Court's
decision in Johnson v. United States, 135 S.Ct.
2551, 2563 (2015). The Federal Public Defender's Office
filed a § 2255 Motion on Hayden's behalf.
§ 2255 petition, Hayden challenges the constitutionality
of former U.S.S.G. § 4B 1.2(a), which defined a
"crime of violence," in part, as an offense that
"otherwise involves conduct that presents a serious
potential risk of physical injury to another," referred
to as the "residual clause." He bases his argument
on Johnson v. United States, 135 S.Ct. 2551, 2563
(2015), in which the Supreme Court held that an identically
worded residual clause in a federal statute, 18 U.S.C. §
924(e)(2)(B)(ii), was unconstitutionally vague and could not
be used to increase a defendant's sentence. Hayden's
argument that his "crime of violence" conviction no
longer supports his career offender status because the
residual clause in the Sentencing Guidelines is
unconstitutional, however, is foreclosed by Beckles.
In Beckles, the Supreme Court held that the
Sentencing Guidelines are not subject to a similar
constitutional challenge as they merely "guide the
exercise of a court's discretion" and do not
"fix the permissible range of sentences" that a
defendant faces. Beckles, 137 S.Ct. at 895. In 2005,
the Supreme Court established that the Sentencing Guidelines
are advisory rather than mandatory. United States v.
Booker, 543 U.S. 220 (2005).
in a supplemental brief, Hay den argues that the court's
determination that he qualified as a career offender is
governed by Johnson, not Beckles. Hayden
argues that when he was sentenced in 1994, the Supreme Court
had not yet held that the Sentencing Guidelines were
advisory, and so he was sentenced under a mandatory
Sentencing Guidelines scheme. United States v.
Booker, 543 U.S. 220 (2005) (holding, in order to avoid
a constitutional violation, that that the Sentencing
Guidelines are advisory and not mandatory). Accordingly, he
argues that the pre-Booker mandatory Sentencing
Guidelines, which fixed his sentencing range, acted as the
functional equivalent of a statutorily imposed sentence, and
as a result, the reasoning set forth in Johnson
applies. (Supp. § 2255 Br. 3-5 [ECF No. 199].)
Beckles Court did not address whether a
constitutional infirmity might arise in circumstances where a
defendant was sentenced under the mandatory Sentencing
Guidelines system that existed prior to Booker. The
Fourth Circuit, in Brown, was faced with just such a
situation, and ultimately concluded that the defendant was
not entitled to relief because he could not overcome the
stringent timeliness hurdle required by 28 U.S.C. § 2255
on collateral review. Brown, 868 F.3d 297, 299 (4th
a defendant must file a motion under § 2255 within one
year from the date on which the defendant's judgment
became final. 28 U.S.C. § 2255(f)(1). However, the
statute allows for an additional one-year period to run when
a defendant relies on a rule of constitutional law newly
recognized by the Supreme Court, starting from "the date
on which the right asserted was initially recognized by the
Supreme Court." Id. § 2255(f)(3). The
Brown court concluded that in neither
Johnson nor Beckles did the Supreme Court
expressly recognize the right of a defendant to obtain relief
who was sentenced as a career offender under the
pre-Booker mandatory Sentencing Guidelines.
Brown, 868 F.3d at 302. By leaving open that
question, the Supreme Court did not "recognize" a
"new right" in the mandatory Sentencing Guidelines
context. Id. Accordingly, the Fourth Circuit
concluded that a defendant sentenced as a career offender
under the mandatory Sentencing Guidelines could not rely on
the additional one-year limitations period in §
was sentenced in 1994, and his judgment became final
following the denial of his appeal in 1996. He did not file
this § 2255 petition until 2016, 20 years after his
judgment became final. Accordingly, his petition is untimely
and must be dismissed. Id. at 304.
reasons stated, I grant the government's motion to
dismiss and dismiss the motion to vacate, set aside, or
correct sentence. Based upon my finding that Hayden has not
made the requisite substantial showing of a denial of a
constitutional right as ...