United States District Court, S.D. West Virginia, Beckley Division
MEMORANDUM OPINION AND ORDER
C. BERGEK UNITED STATES DISTRICT JUDGE.
Court has reviewed the Petitioner's June 27, 2016 motion
under 28 U.S.C. § 2255 to vacate, set aside or correct
sentence (Document 277), brought on the grounds, inter
alia, that his sentence as a career offender is improper
in light of Johnson v. United States, 135 S.Ct. 2251
(2015). The Court has also reviewed the Petitioner's
supplements to that motion (Documents 285, 296), the United
States' responsive briefing, and the Petitioner's
Standing Order (Document 278) entered on June 27,
2016, this action was referred to the Honorable Cheryl A.
Eifert, United States Magistrate Judge, for submission to
this Court of proposed findings of fact and recommendation
for disposition, pursuant to 28 U.S.C. § 636. On
December 8, 2017, the Magistrate Judge submitted a
Proposed Findings and Recommendation (PF&R)
(Document 300) wherein it is recommended that this Court deny
the Petitioner's § 2555 motion. The Petitioner
timely filed Movant's Objections to Proposed Findings
and Recommendations (Document 301).
AND PROCEDURAL HISTORY
2005, the Petitioner, Willie Dumas, was convicted of
conspiracy to possess with intent to distribute cocaine base.
He was sentenced as a career offender under Section 4B1.1 of
the United States Sentencing Guidelines based on a prior
controlled substance felony and a prior felony conviction for
intimidation of a witness, which the Court considered a
“crime of violence.” A previous motion under
§ 2255 was denied, and the Fourth Circuit authorized him
to file this second or successive § 2255 motion based on
the Supreme Court's decision in Johnson.
Court “shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1)(C). 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, this Court need not conduct a
de novo review when a party “makes general and
conclusory objections that do not direct the Court to a
specific error in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir.1982). When reviewing portions of the
PF&R de novo, the Court will consider the fact that
Plaintiff is acting pro se, and his pleadings will
be accorded liberal construction. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d
1291, 1295 (4th Cir.1978).
PF&R recommends that the Petition be dismissed as
untimely, based on case law holding that Johnson
does not apply to defendants sentenced as career offenders
under the advisory Guidelines. The Petitioner objects to any
implication that he would be responsible for showing that the
Court relied on the residual clause of Section 4B1.2(a)(2) of
the Guidelines. He further objects to the finding that his
§ 2255 Petition is untimely in order to preserve that
issue, although he concedes that binding precedent requires
the Court to find the Petition untimely.
the status of the issues, extensive discussion is not
required. A petition challenging a sentence under 28 U.S.C.
§ 2255 must normally be filed within one year of the
conviction becoming final. Section 2255(f)(3) permits motions
filed within one year of “the date on which the right
asserted was initially recognized by the Supreme Court, if
that right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral
review.” In Johnson, the Supreme Court ruled
that the residual clause of the Armed Career Criminal Act,
defining violent felonies to include a crime that
“otherwise involves conduct that presents a serious
potential risk of physical injury to another, ” is
unconstitutionally vague. Johnson v. United States,
135 S.Ct. 2551, 2555-57 (2015). The Supreme Court
subsequently held that Johnson's reasoning was
not applicable to challenges to the similar definition of a
crime of violence contained in the advisory sentencing
guidelines, given that the Guidelines “merely guide the
district courts' discretion.” Beckles v. United
States, 137 S.Ct. 886, 894 (2017) (addressing only the
advisory Guidelines, and not opining as to the
constitutionality of the residual clause of the career
offender provision in the mandatory Guidelines). In
United States v. Brown, the Fourth Circuit Court of
Appeals found a § 2255 petition untimely where the
petitioner challenged a career offender sentence imposed
under the mandatory sentencing guidelines. 868 F.3d 297 (4th
Cir. 2017). The court reasoned that Beckles
demonstrates that the right recognized in Johnson
“did not automatically apply to all similarly worded
residual clauses, ” and so the right asserted by the
petitioner had not been recognized by the Supreme Court.
Id. at 302.
light of that precedent, any disputes regarding whether the
sentencing court relied on the residual clause, who bears the
burden of showing that the residual clause is implicated, or
whether the Guidelines were effectively mandatory at the time
Mr. Dumas's sentence was imposed are immaterial. As the
Petitioner recognizes, the Court is bound by the decision in
Brown to find that his challenge to the residual
clause of the career offender provision contained in the
Guidelines does not involve a right newly recognized by the
Supreme Court. Therefore, his § 2255 petition must be
dismissed as untimely.
after thorough review and careful consideration, the Court
ORDERS that the Movant's Objections
to Proposed Findings and Recommendations (Document 301)
be OVERRULED, and that the Magistrate
Judge's Proposed Findings and Recommendation
(Document 300) be ADOPTED. The Court further
ORDERS that the Petitioner's Motion to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody, pursuant to 28 U.S.C. § 2255, including all
supplements (Documents 277, 284, and 285) be
DENIED, and that this matter be
DISMISSED from the Court's docket.
Court has additionally considered whether to grant a
certificate of appealability. See 28 U.S.C. §
2253(c). A certificate will not be granted unless there is a
substantial showing of the denial of a constitutional right.
Id. § 2253(c)(2). The standard is satisfied
only upon a showing that reasonable jurists would find that
any assessment of the constitutional claims by this Court is
debatable or wrong and that any dispositive procedural ruling
is likewise debatable. Miller-El v. Cockrell, 537
U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S.
473, 484 (2000); Rose v. Lee,252 F.3d 676, 683-84
(4th Cir. 2001). Although other courts of appeals have
reached different conclusions regarding the application of
the rule contained in Johnson to claims challenging
application of the parallel residual clause in the mandatory
Guidelines. See, e.g., Moore v. United States, 871
F.3d 72, 82 (1st Cir. 2017) (permitting second or successive
§ 2255 petition and ...