United States District Court, S.D. West Virginia, Beckley Division
PROPOSED FINDINGS AND RECOMMENDATIONS
Cheryl
Eifert, United States Magistrate Judge
Pending
before the Court is Movant Eric Eugene Robinson's Motion
to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody pursuant to 28 U.S.C. § 2255, (ECF No.
77), and Respondent's motion and amended motion to hold
the deadline to file a response to the § 2255 motion in
abeyance, (ECF Nos. 85, 86). 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 DENIES, as moot,
Respondent's motions to hold the response deadline in
abeyance and further FINDS that Movant's
motion is untimely under 28 U.S.C. § 2255(f); therefore,
the undersigned respectfully RECOMMENDS that
the § 2255 motion be DENIED and this
matter be DISMISSED from the docket of the
Court.
I.
Discussion
In
December 2007, Movant was convicted of possession with intent
to distribute cocaine base in violation of federal law.
U.S. v. Robinson, No. 5:07-cr-00065, (ECF No. 55).
The Court applied a career offender sentence enhancement
under §4B1.1 of the United States Sentencing Guidelines
(“the Guidelines”) on the basis that Movant was
previously convicted of at least two “crimes of
violence, ” including first degree robbery, armed
criminal action, and second degree assault. Under the
relevant Guidelines, a defendant convicted of a controlled
substance or “crime of violence” offense could
receive an increased sentence as a career offender if he had
two prior felony convictions for controlled substances or a
crime of violence. 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
July 6, 2009. Robinson, No. 5:07-cr-00065, (ECF No.
74). Seven years later, on June 23, 2016, Movant filed the
instant motion under § 2255, arguing that he is
“no longer a career offender” because his
predicate convictions no longer qualify as crimes of violence
pursuant to Johnson v. United States, 135 S.Ct. 2551
(2015). (ECF No. 77 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. 77 at 2). 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 more than 6
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. 77 at 3); (referencing 28 U.S.C.
§ 2255(f)(3)).[1]
Respondent
sought to stay this matter pending resolution of the case
Beckles v. United States, 137 S.Ct. 886 (2017), in
which 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. (ECF No. 84). Respondent
also asked the undersigned to hold the deadline to file its
response to Movant's § 2255 motion in abeyance until
the District Court ruled on the motion to stay. (ECF Nos. 85,
86). The District Court declined to issue a stay and the
undersigned ordered Respondent to respond to the § 2255
motion. (ECF Nos. 88, 89). Respondent filed a response brief
to which Movant filed a reply. (ECF Nos. 88, 90, 91).
Therefore, Respondent's motions to hold the response
deadline in abeyance are moot.
Subsequent
to the above filings, the Supreme Court issued its decision
in Beckles, finding that the residual clause in the
Guidelines was not unconstitutionally vague.
Beckles, 137 S.Ct. at 892. The Court explained that
“[u]nlike the ACCA … the advisory Guidelines do
not fix the permissible range of sentences.”
Id. 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 does not show that his motion is
timely under 28 U.S.C. § 2255(f). Movant relied on
Johnson to establish a “newly recognized
right” that allowed him to file this § 2255 motion
well after his judgment of conviction became final. However,
the Beckles decision established that
Johnson does not extend to defendants sentenced
under the residual clause in the advisory Guidelines.
Therefore, the undersigned FINDS that
Movant's motion is untimely and must be dismissed.
II.
Proposal and ...