United States District Court, S.D. West Virginia
MEMORANDUM OPINION AND ORDER
A. FABER SENIOR UNITED STATES DISTRICT JUDGE.
Standing Order, this matter was referred to United States
Magistrate Judge Cheryl A. Eifert for submission of proposed
findings of fact and recommendations regarding disposition
pursuant to 28 U.S.C. § 636(b)(1). Magistrate Judge
Eifert submitted her Findings and Recommendation
(“PF&R”) to the court on December 7, 2017, in
which she recommended that this court deny Smith's motion
under 28 U.S.C. § 2255 as untimely, dismiss the matter
with prejudice, and remove the matter from the court's
docket. In so doing, Magistrate Judge Eifert found that,
pursuant to Beckles v. United States, 137 S.Ct. 886
(2017), and United States v. Brown, 868 F.3d 297,
304 (4th Cir. 2017), Smith's motion was untimely.
accordance with the provisions of 28 U.S.C. § 636(b),
plaintiff was allotted fourteen days plus three mailing days
in which to file any objections to Magistrate Judge
Eifert's Findings and Recommendations. On February 8,
2018, after obtaining an extension of time for doing so,
plaintiff filed objections to the magistrate judge's
Findings and Recommendation.
those objections, Smith argues that Brown was
wrongly decided. See ECF No. 818 at p.3 (“The
opinion of the court in United States v. Brown, 868
F.3d 297 (4th Cir. 2017), is clearly contrary to already
established law. . . .”). Smith maintains that
“Justice Duncan's opinion in the Brown
court eminates [sic] from a position of `carefully'
applying the law viz-a-viz [sic] carefully crafted'
opinions that avoid addressing the legal issue at
hand.” Id. at p.4.
Your movant is of the opinion that the Supreme Court does not
need to hold the hand of adjudicators in every step of
litigation when the adjudicators are lawyers who went through
the rigors of undertaking legal studies and ultimately
practiced law; and were then able to secure judgeships as a
result of developed reputations in the field of law. It is
your movants [sic] understanding that it is for this reason
courts are hesitant to overturn or overrule lower court
decisions, unless they are clearly wrong.
To not grant your movant's § 2255 motion would only
serve to delay justice to an individual with a family,
children, and loved ones who have a hope in a fair and equal
justice system for those who are incarcerated for
extraordinarily long periods of time for nonviolent offenses.
While your movant “waits” for someone with
testicular fortitude to address the illegality of my
sentence, life goes on, people get older, and love[d] ones
and support fade away. Life becomes meaningless in the face
of judicial/bureaucratic “red tape”.
Id. at pp.4-5. Smith goes on to argue that this
court should ignore binding precedent and vacate his
sentence. As he puts it:
To abandon your movant in a legal quagmire would be a
miscarriage of justice in, and of, itself. The ultimate
purpose [of] the Supreme Court's rulings, literally
revamping the role of the judiciary was to enhance the
efficiency of justice. That goal, in your movants [sic]
respective opinion, should be the primary concern of the
judiciary in order to restore public confidence in fair and
equal justice as guaranteed by the United States
Constitution. The fear of an implication outside the realm of
the tunnel vision needed in applying legal jurisprudence
should not be what hinders appropriation of justice.
Id. at p.6.
Smith's argument to the contrary, this court is bound by
the Brown decision. See Adkins v. United
States, Civil Action No. 2:16-cv-05725, 2018 WL
3715746, *1 (S.D. W.Va. Aug. 3, 2018) (Copenhaver, J.)
(denying § 2255 motion as foreclosed by Brown
because even though “the court recognizes the
thoughtful analysis in movant's objections, the
conclusion reached by the magistrate judge is in keeping with
Fourth Circuit precedent”); see also Jordan v.
United States, Nos. 1:09CV816, 1:07CR207-1, 2010 WL
2347076, *3 (M.D. N.C. June 3, 2010) (“This court must
follow, rather than change, binding precedent. . . . Unless
and until the Fourth Circuit concludes that [Brown]
is not valid law, this court must follow it.”).
Furthermore, the arguments Smith makes herein were
specifically considered by the court in Brown and
Petitioner's argument rested on the premise that
Johnson's holding invalidated not only
ACCA's residual clause, but also like-worded residual
clauses in the Sentencing Guidelines.
Petitioner acknowledges, as he must, that the Supreme
Court's recent holding in Beckles, forecloses
his argument that Johnson explicitly invalidated all
residual clauses with wording similar to ACCA's
invalidated residual clause. Petitioner nevertheless urges
this court to extrapolate a recognized right from
Booker, Johnson, and Beckles, read
together. Petitioner and the dissent maintain that we can
find his asserted right in the principles animating these
decisions even though none of them, nor any other Supreme
Court precedent, have recognized a right to challenge the
pre-Booker mandatory Sentencing Guidelines as void
for vagueness and despite the fact that the Beckles
Court expressly declined to address the issue of whether the
pre-Booker mandatory Sentencing Guidelines are
amenable to void-for-vagueness challenges. See
Beckles, 137 S.Ct. at 895; see also id. at 903
n.4 (Sotomayor, J., concurring).
Petitioner urges this court to cobble together a right by
combining Johnson's reasoning with that of two
other Supreme Court cases, Booker and
Beckles. Petitioner's three-case extrapolation
begins with the unobjectionable premise that Booker
recognized a constitutional distinction between mandatory
Sentencing Guidelines and advisory Sentencing Guidelines.
Booker, 543 U.S. at 245, 125 S.Ct. 738. Moving on
from Booker, Petitioner argues that the mandatory
Sentencing Guidelines cabined a sentencing judge's
discretion in a manner that raises the same concerns
animating the Supreme Court's decision in
Johnson: denying fair notice to defendants and
inviting arbitrary enforcement by judges. Johnson,
135 S.Ct. at 2557. To prove this point, Petitioner points to
several related cases in the lower courts, which he claims
serve as evidence that “the mandatory Guidelines look
and act like the ACCA.” Reply Br. at 18. Finally,
Petitioner points out that the Beckles Court
carefully limited its holding to the advisory
Sentencing Guidelines, thus, in his view, leaving open the
question of whether defendants could challenge sentences
imposed under the mandatory Sentencing Guidelines as void for
vagueness. Beckles, 137 S.Ct. at 895; see also
id. at 903 n.4 (Sotomayor, J., concurring).
Yet Petitioner's argument is self-defeating. If the
Supreme Court left open the question of whether
Petitioner's asserted right exists, the Supreme Court has