United States District Court, S.D. West Virginia
MEMORANDUM OPINION AND ORDER
A. Faber Senior United States District Judge.
before the court is movant's “Second or Successive
Motion to Correct Sentence Under 28 U.S.C. §
2255.” ECF No. 168. By Standing Order, this matter was
referred to United States Magistrate Judge Omar J. Aboulhosn
for submission of proposed findings and recommendation
(“PF&R”) for disposition pursuant to 28
U.S.C. 636(b)(1)(b). ECF No. 170. The magistrate judge
submitted his PF&R on May 3, 2018. ECF No. 190. In the
PF&R, Judge Aboulhosn recommended that the court deny
movant's motion and remove this matter from the
accordance with the provisions of 28 U.S.C. § 636(b),
petitioner was allotted fourteen days, plus three mailing
days, in which to file any objections to Magistrate Judge
Aboulhosn's Findings and Recommendation. The failure to
file such objections constitutes a waiver of the right to a
de novo review by this court. Snyder v. Ridenour,
889 F.2d 1363 (4th Cir. 1989). It is worth noting that 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). Movant,
through counsel, filed objections on May 16, 2018. ECF No.
his indictment and a May 2003 jury trial, Warren Collins was
convicted in this court of two counts: 1) conspiracy to
distribute cocaine base in violation of 21 U.S.C. § 846;
and 2) possession with intent to distribute cocaine base in
violation of 21 U.S.C. § 841(a)(1). See United
States v. Collins, Criminal Action No. 1:02-00102, ECF
No. 13. At movant's sentencing hearing in December 2013,
this court determined that he met the criteria for career
offender status pursuant to United States Sentencing
Guideline § 4B1.1 because of two prior convictions: 1)
unlawful wounding; and 2) a controlled substance offense.
Consistent with the Guidelines, movant's base offense
level of 20 was increased to a total offense level of 32, and
he was sentenced to a 216-month term of imprisonment followed
by a three-year term of supervised release.
movant filed a motion for a new trial, appealed his
conviction to the Fourth Circuit Court of Appeals, filed a
Section 3582 motion for reduced sentenced based on a
reduction in applicable sentencing guidelines regarding
cocaine base, and filed his original § 2255 motion. Each
motion was either denied or this court's sentence
affirmed. Id. at ECF Nos. 89, 99, 100, 151, 155,
156; United States v. Collins, 412 F.3d 515 (4th
Cir. 2005). In July 2016, the Fourth Circuit granted
movant's motion to file a second § 2255 claim in
light of the Supreme Court's decision in Johnson v.
United States, -- U.S. --, 135 S.Ct. 2551 (2015), and
the Federal Public Defender was appointed to represent him.
ECF Nos. 165, 174, 175. This action followed.
explain movant's action, first the court must explain the
present legal landscape. Under 28 U.S.C. § 2255, a
prisoner may move to have his sentence vacated or corrected
if it “was imposed in violation of the Constitution or
laws of the United States.” 28 U.S.C. § 2255(a). A
§ 2255 motion must be filed within one year from the
date on which a petitioner's conviction becomes final
unless an exception applies. Id. at §
2255(f)(1). Movant's conviction occurred in 2003 (more
than one year ago), thus he must rely upon an exception.
Movant relies on the exception established by §
2255(f)(3), whereby a motion is timely if (1) it
“assert[s] . . . [a] right . . . newly recognized by
the Supreme Court, ” (2) the movant's action arises
within one year from “the date on which the right
asserted was initially recognized by the Supreme Court,
” and (3) the Supreme Court or controlling Court of
Appeals has declared the right retroactively applicable on
collateral review. Id. at § 2255(f)(3);
Dodd v. United States, 545 U.S. 353, 358-59 (2005).
Only the Supreme Court, not the controlling Court of Appeals,
may “recognize” a new right under §
2255(f)(3). See Dodd, 545 U.S. at 357-59.
the Armed Career Criminal Act (“ACCA”) defined a
“violent felony” as a crime punishable by
imprisonment for a term exceeding one year “that - (i)
has an element the use, attempted use, or threatened use of
physical force against the person of another; or (ii) is
burglary, arson, or extortion, involves the use of explosives
or otherwise involves conduct that presents a serious
potential risk of physical injury to another.” 18
U.S.C. § 924(e)(2)(B)(ii) (emphasis added). The
underlined portion is known as the ACCA's “residual
clause.” The Supreme Court in Johnson v. United
States held that this “residual clause” was
unconstitutionally vague, and in doing so established a
recognized right meeting the first prong of §
2255(f)(3). 135 S.Ct. 2551. The Supreme Court later announced
that this right was retroactively applicable, Welch v.
United States, 136 S.Ct. 1257, 1265 (2016), satisfying
the third prong of § 2255(f)(3). Therefore, so long as a
movant complies with the one-year limitation created by prong
two of § 2255(f)(3), they may challenge the
constitutionality of a conviction established under the
ACCA's residual clause.
identical residual clauses to the ACCA's residual clause
are included in a number of other criminal statutes.
Recently, the Supreme Court in Beckles v. United
States held that advisory guideline sentences that
include residual clauses that are textually identical to the
ACCA “are not subject to vagueness challenges under the
Due Process Clause.” 137 S.Ct. 886, 890 (2017).
However, the Supreme Court confined its opinion only to
sentences that are advisory, not mandatory, upon
district courts. See id. at 890, 892, 896, 897;
see also id. at 903 (Sotomayor, J., concurring)
(stating that the majority opinion “leaves open”
the question of whether mandatory Guideline sentences are
subject to vagueness challenges). Therefore, this created
ambiguity for instances of textually identical residual
clauses related to mandatory sentences. This
includes all criminal sentences that occurred before the
Supreme Court's 2005 ruling in United States v.
Booker, 543 U.S. 220 (2005), which determined that the
Guidelines were no longer mandatory upon district courts.
this void, the Fourth Circuit construed the right established
in Johnson to apply only to the ACCA's residual
clause and not to other mandatory residual clauses. See
United States v. Brown, 868 F.3d 297, 304 (4th Cir.
2017). The Fourth Circuit observed, “[i]f the Supreme
Court left open the question of whether Petitioner's
asserted right exists, [then] the Supreme Court has not
‘recognized' that right.” Id. at
302; see also Hamilton v. United States, No.
1:16-CV-05806, 2017 WL 7049171, at *3 (S.D. W.Va. Dec. 11,
2017) (Eifert Mag. J.), report and recommendation
adopted, No. CR 1:95-00174, 2018 WL 539332 (S.D. W.Va.
Jan. 24, 2018) (“Therefore, the Fourth Circuit held
that at least for purposes of collateral review, courts must
wait for the Supreme Court to rule that the residual clause
in the mandatory version of the Guidelines is
unconstitutionally vague.”). Because no recognized
right has been created outside Johnson and the
ACCA's residual clause, Brown's § 2255 motion
was dismissed as untimely because it did not satisfy the
exception of § 2255(f)(3).
advances the same argument rejected by the Fourth Circuit in
Brown - that the recognized right in
Johnson should be extrapolated to Sentencing
Guideline § 4B1.1 whereby career offender status is
determined. Specifically, movant claims that his prior
conviction for malicious wounding is no longer an applicable
conviction for career offender designation because it fell
under the residual clause of Guideline § 4B1.1.
Moreover, movant's sentence was mandatory because it
occurred in 2003 pre-Booker.
as detailed above, the Fourth Circuit has determined that the
recognized right under Johnson may not be applied to
other mandatory and textually identical residual clauses.
See Brown, 868 F.3d 297. Movant concedes as much in
his objections, which merely seek “to preserve the
issue for further review.” ECF No. 191 at p.2.
Therefore, since movant's dispute is with Brown
and not the magistrate judge, the court need not engage in a
de novo review or digress into a further discussion to
resolve this motion. See Orpiano, 687 F.2d at 47-
48. Accordingly, the court dismisses movant's motion as
the court has 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.” 28 U.S.C. § 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, ...