United States District Court, N.D. West Virginia, Martinsburg
ORDER ADOPTING REPORT AND RECOMMENDATION
PRESTON BAILEY, UNITED STATES DISTRICT JUDGE
day, the above-styled matter came before this Court for
consideration of the Report and Recommendation of United
States Magistrate Judge James E. Seibert [Crim. Doc. 97 /
Civ. Doc. 6]. Pursuant to this Court's Local Rules, this
action was referred to Magistrate Judge Seibert for
submission of a proposed report and a recommendation
(“R&R”). Magistrate Judge Seibert filed his
R&R on July 8, 2016, wherein he recommends this Court
deny and dismiss the petitioner's § 2255 petition.
to 28 U.S.C. § 636(b)(1)(c), this Court is required to
make a de novo review of those portions of the
magistrate judge's findings to which objection is made.
However, the Court is not required to review, under a de
novo or any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of
the findings or recommendation to which no objections are
addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985).
In addition, failure to file timely objections constitutes a
waiver of de novo review and the right to appeal
this Court's Order. 28 U.S.C. § 636(b)(1);
Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.
1989); United States v. Schronce, 727 F.2d 91, 94
(4th Cir. 1984). Here, objections to Magistrate Judge
Seibert's R&R were due within fourteen (14) days of
receipt, pursuant to 28 U.S.C. § 636(b)(1) and
Fed.R.Civ.P. 72(b). The petitioner timely filed objections on
July 18, 2016 [Crim. Doc. 99]. Accordingly, this Court will
review the portions of the R&R to which objection was
made under a de novo standard. The remainder will be
reviewed for clear error.
before this Court is the Defendant's Motion to Vacate
Sentence Pursuant to 28 U.S.C. § 2255 [Doc.
The petitioner, acting pro se, argues that this
Court should vacate his sentence of imprisonment and
resentence him in light of recent decisions issued by the
Supreme Court of the United States and the United States Court
of Appeals for the Fourth Circuit. Recent Supreme Court case
law has established that the petitioner is not entitled to
the requested relief.
October 28, 2010, this Court sentenced the petitioner to a
term of 110 months' imprisonment following a plea of
guilty to Count One of the Indictment, charging him with
being a felon in possession of a firearm. In calculating the
petitioner's advisory guideline sentencing range, the
petitioner argues this Court found that both of his prior
convictions constituted a “crime of violence”
under the United States Sentencing Guidelines
(“USSG”). Accordingly, the petitioner's
offense level was enhanced under § 2K2.1(a)(2). Pursuant
to this designation, the petitioner's base offense level
of 14 was increased to a level 24. After a three-level
reduction for acceptance of responsibility, the
petitioner's total offense level was 21. With a criminal
history category of VI, the Guidelines provided a sentencing
range of 77 to 96 months. This Court imposed a sentence of
110 months' imprisonment.
petitioner argues that the predicate convictions that result
e d i n h i s § 2 K 2 . 1 (a) (2) enhancement were
classified as crimes of violence based on the “residual
clause”. The petitioner contends that the residual
clause has since been found to be unconstitutionally vague,
and he asks this Court to vacate his sentence and to
resentence him without the enhancement.
to the petitioner's sentencing, the Supreme Court issued
its decision in Johnson v. United States, 135 S.Ct.
2551 (2015), holding that the “residual clause”
of the Armed Career Criminal Act is unconstitutionally
vague. Subsequently, in Welch v. United
States, 136 S.Ct. 1257 (2016), the Supreme Court held
that Johnson announced a substantive rule that
applies retroactively on collateral review. And recently, in
In re Hubbard, No. 15-276, 2016 WL 3181417 (4th Cir.
June 8, 2016), the United States Court of Appeals for the
Fourth Circuit discussed the applicability of the
Johnson holding to the career offender
provision. Here, the petitioner asserts that the
holdings in Johnson, Welch and In re
Hubbard have rendered his sentence of imprisonment
unlawful, necessitating a prompt resentencing.
Fourth Circuit, however, left open the question of whether,
under Johnson, the definition of “crime of
violence” in the Sentencing Guidelines is
unconstitutionally vague. See Hubbard, 2016 WL
3181417, at *4. Last week, the Supreme Court of the United
States held that “the Guidelines are not
subject to a vagueness challenge under the Due Process
Clause.” Beckles v. United States, 580 U.S.
___, No. 15-8544, Slip op. at 5 (Mar. 6, 2017)(Thomas,
J.)(emphasis added). This would include the language
petitioner relies on at USSG § 2K2.1(a)(2).
review of the aforementioned, and in light of
Beckles, this Court ADOPTS the Report and
Recommendation [Crim. Doc. 97 / Civ. Doc. 6] for the reasons
more fully stated therein. Accordingly, this Court ORDERS
that the § 2255 Petition [Crim. Doc. 91 / Civ. Doc. 1]
be DENIED, and this matter be DISMISSED WITH PREJUDICE. The
petitioner's Objections [Crim. Doc. 99] are OVERRULED.
The Motion to Appoint Counsel [Crim. Doc. 103] and Motion for
Leave to File Persuasive Authority [Crim. Doc. 101] are
DENIED AS MOOT. This matter is further ORDERED STRICKEN from
the active docket of this Court.
final matter, it is ORDERED that, pursuant to Rule 11(a) of
the Rules Governing Section 2254 and Section 2255 Cases, this
Court declines to issue a certificate of appealability as the
petitioner has not made a substantial showing of a denial of
a constitutional right. 28 U.S.C. § 2253(c)(2);
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003)
(in order to satisfy § 2253(c), a petitioner must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong (citing Slack v. McDaniel 529 U.S. 473, 484
Clerk is directed to transmit copies of this Order to all
counsel of record herein and to mail a copy to the pro