United States District Court, S.D. West Virginia, Bluefield
FREDERICK C. RIERSON, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
A. Faber, Senior United States District Judge.
before the Court is Movant Frederick C. Rierson's
(hereinafter “Movant”) Motion to Correct Sentence
under 28 U.S.C. § 2255 (ECF No. 37). This matter was
referred to the Honorable Dwane L. Tinsley for submission of
proposed findings and a recommendation for disposition
pursuant to 28 U.S.C. § 636(b)(1)(B). It is hereby
ORDERED that the referral of this matter to
the Magistrate Judge is WITHDRAWN.
April 2, 2002, Movant pled guilty to one count of being a
felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). On December 11, 2003, Movant was sentenced
to 180 months in prison, followed by a three-year term of
supervised release. (ECF No. 32). His sentence included an
enhancement under 18 U.S.C. § 924(e)(1) on the basis
that he had at least three prior convictions for either a
“violent felony” or a “serious drug
offense” as defined in 18 U.S.C. § 924(e)(2)
(hereinafter the Armed Career Criminal Act or the
26, 2015, the Supreme Court decided United States v.
Johnson, 135 S.Ct. 2551 (2015)
(“Johnson”), holding that the residual
clause of the ACCA is unconstitutionally vague and further
finding that imposition of an increased sentence thereunder
violates due process. On April 18, 2016, the Supreme Court
decided Welch v. United States, 136 S.Ct. 1257
(2016), in which the Court determined that Johnson
changed the substantive reach of the ACCA, and therefore was
a substantive, rather than a procedural decision, because it
affected the reach of the underlying statute rather than the
judicial procedures by which the statute was applied.
Therefore, the Court held that Johnson announced a
new substantive rule that applies retroactively to cases on
24, 2016, the Office of the Federal Public Defender was
appointed to represent Movant to determine whether he is
entitled to any relief under Johnson. (ECF No. 35).
That same date, Movant filed the pending Motion to Correct
Sentence under 28 U.S.C. § 2255 (ECF No. 37). At that
time, Movant was already serving his three-year term of
supervised release. The United States of America filed a
Response to the section 2255 motion on July 20, 2016 (ECF No.
42) and Movant filed a Reply on August 19, 2016 (ECF No. 43).
Memorandum Opinion and Order entered on February 15, 2018,
Movant's term of supervised release was terminated due to
his serious health condition and poor prognosis. (ECF No.
46). The Court has now received written notice from
Movant's probation officer that Movant passed away on
July 19, 2018. Accordingly, the Court FINDS
that the requested relief is no longer possible.
power of the federal courts to adjudicate claims turns on the
existence of a case or controversy. U.S. Const., art. III,
§ 2; Daimler-Chrysler Corp. v. Cuno, 547 U.S.
332, 352 (2006). “When a case or controversy ceases to
exist because the issue is no longer live or a party
‘lack[s] a legally cognizable interest in the outcome[,
]' preventing the court from granting effective relief,
the claim becomes moot, and the court lacks the
constitutional authority to adjudicate the issue.”
Taylor v. Riverside Regional Jail Authority, 2011 WL
6024499 *4 (E.D. Va., Dec. 2, 2011) (citing Powell v.
McCormack, 395 U.S. 486, 496 (1969) and North
Carolina v. Rice, 404 U.S. 244, 246 (1971)).
section 2255 motion is now moot by virtue of his death.
See, e.g., Krantz v. United States, 224 F.3d 125 (2d
Cir. 2000) (§ 2255 motion and motion for certificate of
appealability were rendered moot by death of movant).
Accordingly, Movant's Motion to Correct Sentence under 28
U.S.C. § 2255 (ECF 37) is hereby DENIED AS
Clerk is directed to send a copy of this Memorandum Opinion
and Order to counsel of record, to the United States Marshal
for the Southern District of West Virginia, and to the
Probation Office of this court.
 The ACCA provides for a sentencing
enhancement for a felon possessing a firearm or ammunition
when the defendant has three prior convictions for violent
felonies and/or serious drug offenses. 18 U.S.C. §§
922(g)(1) and 924(e)(1). The ACCA defines a “violent
felony” as a crime punishable … by imprisonment
for a term exceeding one year … that
(i) has as an element the use, attempted use, or
threatened use of physical force against the person of