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Jerecki v. United States

United States District Court, S.D. West Virginia, Charleston Division

December 6, 2017

THOMAS JERECKI, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          PROPOSED FINDINGS AND RECOMMENDATIONS

          Cheryl A. Eifert United States Magistrate Judge

         Pending before the Court is Movant Thomas Jerecki's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255, (ECF No. 90), and his request to hold his § 2255 motion in abeyance. (ECF No. 91). This matter is assigned to the Honorable Thomas E. Johnston, United States District Judge, and by Standing Order has been referred to the undersigned United States Magistrate Judge for the submission of proposed findings of fact and recommendations for disposition (“PF&R”) pursuant to 28 U.S.C. § 636(b)(1)(B). Having thoroughly considered the record, the undersigned FINDS that Movant's motion is untimely under 28 U.S.C. § 2255(f); therefore, the undersigned respectfully RECOMMENDS that Movant's motions be DENIED, and this matter be DISMISSED from the docket of the Court.

         I. Discussion

         In December 1998, Movant was convicted of one count of conspiracy to distribute and possession with intent to distribute methamphetamine in violation of federal law. U.S. v. Jerecki, No. 6:98-cr-00111, (ECF No. 29). The Court applied a career offender sentence enhancement under §4B1.1 of the United States Sentencing Guidelines (“the Guidelines”) based upon the fact that Movant had prior felony convictions for controlled substances and “crime(s) of violence.” (Id. at ECF Nos. 37 at 26, 28 and 47 at 9). Movant's criminal history included, inter alia, convictions for assault with a deadly weapon; possession of a controlled substance, and theft by force and fear. (Id. at ECF No. 47 at 10-12; ECF No. 90 at 3). Under the relevant Guidelines, a defendant could receive an increased sentence as a career offender if he had two prior convictions for “a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1. A “crime of violence” was defined as:

[A]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that -
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Id. at § 4B1.2(a) (emphasis added). The italicized portion of the above-quoted definition is known as a residual clause.

         Movant filed a direct appeal with the United States Court of Appeals for the Fourth Circuit (“Fourth Circuit”), which issued a mandate affirming his conviction and sentence on November 22, 1999. Jerecki, No. 6:98-cr-00111, (ECF No. 51-2 at 23). Approximately one year later, Movant filed a § 2255 motion, which this Court denied and Movant unsuccessfully appealed. (Id. at ECF Nos. 51, 64, 70, 71, 72, 73, 75). Thereafter, on June 27, 2016, Movant filed the instant second or successive motion under § 2255. (ECF No. 90). Contemporaneously with filing this § 2255 motion, Movant asked to hold the motion in abeyance as he sought authorization from the Fourth Circuit to file a second or successive § 2255 motion under 28 U.S.C. §§ 2244(b), 2255(h). (ECF No. 91). The Fourth Circuit since granted Movant authorization for his second or successive § 2255 motion. (ECF Nos. 92, 93).

         In the present § 2255 motion, Movant contends that he is “no longer a career offender because his prior convictions for theft by force or fear and assault with a deadly weapon … no longer qualify as crimes of violence” pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015). (Id. at 1). In Johnson, the Supreme Court of the United States (“Supreme Court”) considered a portion of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B), under which a person could receive more severe punishment as an armed career criminal if the person had at least three prior “violent felony” convictions. Johnson, 135 S.Ct. at 2555. As defined in the ACCA, the term “violent felony” included any crime punishable by imprisonment for a term exceeding one year that “otherwise involve[d] conduct that present[ed] a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). The Supreme Court found that the catchall definition of “violent felony” contained in the ACCA's residual clause was unconstitutionally vague because it left too much uncertainty as to what acts and crimes would qualify as violent felonies. Id. at 2557-58. Therefore, the Supreme Court found that imposing an enhanced sentence by using the residual clause of the ACCA violated the Constitution's guarantee of due process. Id. at 2563.

         In this case, Movant does not argue that he was sentenced as a career offender under the residual clause in the ACCA. Rather, Movant contends that the holding in Johnson extends to his case because he was sentenced under the identically-worded residual clause in the Guidelines. (ECF No. 90). Acknowledging the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) one-year statute of limitations on § 2255 motions, Movant asserts that his § 2255 petition-although filed 16 years after his judgment of conviction became final-is timely because it was filed “within one year of the Supreme Court's decision in Johnson - a ruling which established a ‘newly recognized right' that is ‘retroactively applicable to cases on collateral view.'” (ECF No. 90 at 2); (referencing 28 U.S.C. § 2255(f)(3)).[1]

         Subsequent to the above filings and during the pendency of this case, the Supreme Court issued a decision in Beckles v. United States, 137 S.Ct. 886 (2017). In Beckles, the Supreme Court was asked to examine the constitutionality of the career offender residual clause in the Guidelines given the Johnson decision striking down the same clause in the ACCA. The Court determined that the residual clause in the Guidelines was not unconstitutionally vague, explaining that “[u]nlike the ACCA … the advisory Guidelines do not fix the permissible range of sentences.” Id. at 892. Rather, the Guidelines “merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range.” Id. As such, the Court found that “the Guidelines are not subject to a vagueness challenge under the Due Process clause” and “[t]he residual clause in §4B1.2(a)(2) therefore is not void for vagueness.” Id.

         In light of the Supreme Court's decision in Beckles, Movant filed a supplemental memorandum in support of his § 2255 motion. (ECF No. 109). Movant argues that Beckles applies only to advisory Guidelines and does not preclude his Johnson claim, because he was sentenced during a period when the Guidelines were mandatory. (Id.). Movant does not dispute that the only way that his § 2255 motion is timely is if it meets the requirements of § 2255(f)(3). (ECF No. 112). On that basis, Movant reiterates that his motion is timely under § 2255(f)(3) because it was filed within one year of the Supreme Court's holding in Johnson. (Id.).

         As an initial matter, the parties in this case jointly recognize that it is unclear whether Movant was sentenced as a career offender based, in any part, on the residual clause in the Guidelines. (ECF Nos. 105, 108). As noted, a career offender sentence enhancement under the Guidelines required two prior felony convictions for controlled substances or crimes of violence. U.S.S.G. § 4B1.1. Predicate crimes of violence could be certain specified crimes, crimes which had “as an element the use, attempted use, or threatened use of physical force against the person of another, ” or crimes that fell within the residual clause. U.S.S.G. §4B1.2(a). Movant's criminal history included felony convictions for controlled substances, as well as assault with a deadly weapon and theft by force and fear. The Court did not specify which of the foregoing crimes it considered to be the qualifying predicate crimes for the purpose of sentencing Movant as a career offender. Furthermore, to the extent that Movant's prior convictions for assault with a deadly weapon and theft by force and fear may have partially formed the basis of Movant's sentence enhancement, there is no indication whether they qualified as crimes of violence because they involved an element of physical force under § 4B1.2(a)(1), or whether they fell within ...


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