United States District Court, S.D. West Virginia, Charleston Division
PROPOSED FINDINGS AND RECOMMENDATION
J. ABOULHOSN UNITED STATES MAGISTRATE JUDGE
before the Court are the following: (1) Movant's
letter-form Motion to File a Timely 2255 Motion (Document No.
18), filed on March 24, 2016; and (2) Movant's pro
se Motion to Vacate, Set Aside, or Correct Sentence by A
Person in Federal Custody Pursuant to 28 U.S.C. § 2255
(Document No. 19), filed on April 25, 2016. By Standing
Order, this matter was referred to the undersigned for
submission of proposed findings of fact and a recommendation
for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).
(Document No. 22.)
AND PROCEDURAL BACKGROUND
Criminal Action No. 2:14-00192:
September 15, 2014, Movant pled guilty to a single count
Information charging him with possession of a stolen firearm
in violation of 18 U.S.C. §§ 922(j) and 924(a)(2).
(Criminal Action No. 2:14-00192, Document No. 5 - 7.) A
Presentence Investigation Report was prepared. (Id.,
Document No. 12.) The District Court determined Movant had an
Base Offense Level of 24, and a Total Offense Level of 23,
the Court having applied the following: (1) A two level
enhancement pursuant to U.S.S.G. § 2K2.1(b)(4) because
the firearm was stolen; and (2) A three-level reduction
pursuant to U.S.S.G. § 3E1.1(a) and (b) for acceptance
of responsibility.(Id., Document No. 12, p. 8.) The
District Court sentenced Movant on December 16, 2014, to a
60-month term of imprisonment to be followed by a three-year
term of supervised release. (Id., Document Nos. 9
and 10.) The District Court also imposed a $100 special
assessment. (Id.) Movant did not file a direct
appeal with the Fourth Circuit Court of Appeals. On March 24,
2016, Movant filed his letter-form Motion to File a Timely
2255 Motion based upon Johnson v. United States, 135
S.Ct. 2551 (2015). (Id., Document No. 18.)
Section 2255 Motion:
April 25, 2016, Movant, acting pro se, filed his
first Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody and
Memorandum in Support. (Civil No. 2:14-00192, Document Nos. 19
and 20.) In support of his Motion, Movant alleges that he is
entitled to relief based upon the United States Supreme
Court's decision Johnson v. United States, ____
U.S.____, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015).
(Id.) Specifically, Movant argues that he received a
base offense level of 24 because the Court determined Movant
had two felony convictions of either a crime of violence or a
controlled substance offense. (Id.) Movant explains
that he had a prior 2008 conviction for trafficking in drugs
and a 2010 conviction for attempted kidnapping.
(Id.) Based on Johnson, Movant argues that
his prior conviction for attempted kidnapping no longer
constitutes a “crime of violence” for purposes of
U.S.S.G. § 2K2.1(a)(2). (Id.)
Order entered on April 27, 2016, the undersigned directed the
United States to file its Answer. (Id., Document No.
23.) The United States filed a Response on May 25, 2016.
(Id., Document No. 25.) First, the United States
argues that Movant's Section 2255 Motion is untimely.
(Id., pp. 3 - 5.) Second, the United States contends
that “Johnson and Welch do not
retroactively apply to Defendant's case.”
(Id., pp. 5 - 10.) Accordingly, the United States
requests that Movant's Section 2255 Motion be dismissed.
13, 2016, Movant filed his Reply. (Document No. 26.) Movant
continues to argue that he was improperly enhanced to a base
offense level of 24 pursuant U.S.S.G. § 2K2.1(a)(2)
because his prior conviction for attempted kidnapping no
longer constitutes a “crime of violence.”
(Id.) Movant argues that his Motion is timely
because Welch made Johnson retroactive to
cases on collateral review. (Id.)
relevant portion of Section 2255 provides as follows:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
order to be cognizable under Section 2255, claims based on
other than constitutional or jurisdictional grounds must
present exceptional circumstances that justify permitting a
collateral attack. Stated another way, the alleged error must
amount to “a fundamental defect which inherently
results in a complete miscarriage of justice” or
“an omission inconsistent with the rudimentary demands
of fair procedure.” Hill v. United States, 368
U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). Section
2255 is not a substitute for direct appeal. United States
v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d
816 (1982). Accordingly, errors warranting a reversal on
direct appeal will not necessarily support a collateral
attack. Knight v. United States, 37 F.3d 769, 772
(1st Cir.1994). See United States v. Addonizio, 442
U.S. 178, 184, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). Failure
to raise an issue presented in sentencing on direct appeal
which is non-constitutional in nature amounts to a waiver of
the right to contest the issue in Section 2255 proceedings.
See United States v. Emanuel, 869 F.2d 795
(4th Cir. 1989).
respect to issues which are constitutional in nature, absent
a showing of good cause for and prejudice from failing to
appeal as may be shown by a defendant in criminal
proceedings, Section 2255 is no substitute, and the failure
precludes Section 2255 review. Theodorou v. United
States, 887 F.2d 1336, 1339-40 (7th Cir.
1989)(“[A]bsent a showing of cause and prejudice, a
defendant is barred from raising any constitutional challenge
in a section 2255 proceeding which could have been raised on
direct appeal.”); See also United States v.
Maybeck, 23 F.3d 888, 891 (4th Cir. 1994),
cert. denied, 517 U.S. 1161, 116 S.Ct. 1555, 134
L.Ed.2d 657 (1996). The standard is conjunctive. As a general
matter, therefore, movants must show good cause for
and prejudice from their failure to raise any
constitutional issues advanced under Section 2255 on direct
appeal. See Theodorou, supra, 887 F.2d at 1340.
Constitutional claims of ineffective ...