United States District Court, D. South Carolina, Greenville Division
OPINION & ORDER
M. Herlong, Jr. Senior United States District Judge
27, 2016, Movant filed a motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255, arguing
that he is no longer a career offender under the United
States Sentencing Guidelines (“U.S.S.G.”) in
light of Johnson v. United States, 135 S.Ct. 2551
(2015). Specifically, Movant argues that he is
entitled to relief because his prior convictions for assault
and battery of a high and aggravated nature do not qualify
under the ‘residual clause' of U.S.S.G. §
4B1.2, and that clause is unconstitutionally vague in light
of Johnson v. United States, 135 S.Ct. 2551 (2015).
(Def. Mem. Supp. § 2255 Mot., generally, ECF No. 333.)
matter was stayed pending the United States Supreme
Court's resolution in the case of Beckles v. United
States, 137 S.Ct. 886 (2017). On March 6, 2017, the
Supreme Court held in Beckles that Johnson
did not apply to the residual clause of the career offender
guideline set forth in § 4B1.2(a)(2) of the U.S.S.G.
because the advisory sentencing guidelines were not subject
to a void for vagueness challenge under the Due Process
Clause in the Fifth Amendment. Id. at 895.
Government filed a motion for summary judgment on May 8,
2017. (Gov't Mot. Summ. J., ECF No. 371.) Movant filed a
response in opposition on May 15, 2017, arguing that
Movant's § 2255 motion is timely and that his
sentence is unconstitutional under Johnson because
he was sentenced under the mandatory sentencing guidelines in
effect prior to United States v. Booker,
543 U.S. 220, 234 (2005). (Resp. Opp'n Summ. J., ECF No.
373.) Movant argues that Beckles does not apply to
mandatory guideline sentences.
August 21, 2017, the United States Court of Appeals for the
Fourth Circuit held in United States v. Brown, 868
F.3d 297 (4th Cir. 2017), that Johnson did not
announce a retroactively applicable right with respect to
“the mandatory Sentencing Guidelines' residual
clause at issue.” United States v. Brown, 868
F.3d 297, 302 (4th Cir. 2017).
While Johnson did announce a retroactively applicable right,
Johnson dealt only with the residual clause of
ACCA-a federal enhancement statute. Johnson did not
discuss the mandatory Sentencing Guidelines' residual
clause at issue here or residual clauses in other versions of
the Sentencing Guidelines.
Id. (citations omitted).
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), federal prisoners seeking habeas
relief have one year from the date their conviction becomes
final to file a § 2255 motion. Section 2255 provides as
A 1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
of-(1) the date on which the judgment of conviction becomes
final; (2) the date on which the impediment to making a
motion created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
governmental action; (3) 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; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f). Judgment was entered on October 29,
2004. Movant appealed his conviction and sentence, and the
Fourth Circuit affirmed the judgment of the court on November
8, 2005. United States v. Gates, No. 04-4951, 2005
WL 2981808, at *1 (4th Cir. Nov. 8, 2005) (unpublished).
Movant filed an untimely § 2255 motion on October 25,
2013, which the court dismissed on December 10, 2013.
Further, the Fourth Circuit dismissed Movant's appeal of
the court's order dismissing his § 2255 motion on
May 28, 2014. Movant received permission from the Fourth
Circuit to file a second or successive § 2255 on June
27, 2016. The instant § 2255 motion was filed the same
instant petition is time-barred. The Supreme Court has not
yet recognized a right to “challenge sentences imposed
under the mandatory Sentencing Guidelines as void for
vagueness.” Brown, 868 F.3d at 302. Further,
although the Fourth Circuit granted Movant authorization to
file a second or successive § 2255 motion in light of
Johnson, the court “did not consider the
timeliness of the movant's underlying merits
argument.” Brown, 868 F.3d at 303. Thus, the
court is required to consider the timeliness of the instant
§ 2255 motion. Movant “raises an untimely motion
in light of § 2255(f)(3)'s plain language, the
narrow nature of Johnson's binding holding, and
Beckles's indication that the position advanced
by [Movant] remains an open question in the Supreme
Court.” Id. at 303. Based on the foregoing,
the Government's motion for summary judgment is granted
and Movant's § 2255 motion is denied.
that the Government's motion for summary judgment, docket
number 371, is granted. It is further
that Movant's § 2255 motion, docket number 333, ...