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United States v. Nicolai

United States District Court, D. South Carolina, Spartanburg Division

March 2, 2018

United States of America,
v.
Michael Christopher Nicolai, Movant.

          OPINION & ORDER

          Timothy M. Cain United States District Judge

         This matter is before the court on Michael Christopher Nicolai's (“Nicolai”) motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (ECF No. 78). The Government filed a response requesting that the court deny the motion. (ECF No. 89). For the reasons set forth below, Nicolai's motion is denied.

         I. Procedural History

         On January 8, 2013, Nicolai was indicted for possessing images of child pornography that had been mailed, shipped, and transported in interstate and foreign commerce by any means, including by computer, in violation of 18 U.S.C. § 2252A(a)(5)(B). (ECF No. 2). On May 5, 2013, Nicolai pled guilty to the charge and on September 17, 2013, the court sentenced him to 110 months imprisonment and five years of supervised release. (ECF Nos. 35 and 52).[1] Judgment was entered on September 20, 2013. (ECF No. 53). On October 4, 2013, Nicolai filed an appeal, and on March 18, 2014, the Fourth Circuit Court of Appeals affirmed the court's judgment. (ECF Nos. 56 and 72). Nicolai did not seek further review.

         II. Standard of Review

         To obtain relief on a motion under 28 U.S.C. § 2255, the movant must prove that one of the following occurred: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). Thus, a movant must establish either an error of “constitutional or jurisdictional magnitude” or an error which “could not have been raised on direct appeal, and if condoned, would result in a complete miscarriage of justice.” Hill v. United States, 368 U.S. 424, 428 (1962). However, if a movant does not raise a claim on direct review, he may not raise it for the first time on collateral review unless the movant can show (1) cause and actual prejudice or (2) actual innocence. Bousley v. United States, 523 U.S. 614, 621-22, (1998). If the movant cannot satisfy the cause and prejudice analysis, movant may be excused from default if the case falls “within ‘the narrow class of cases . . . implicating a fundamental miscarriage of justice.'” Schlup v. Delo, 513 U.S. 298, 314-15 (1995). To do so the movant must establish through new evidence “that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Id. at 327.

         III. Discussion

         In the instant motion, Nicolai seeks relief pursuant to the Supreme Court's holding in Johnson v. United States, 135 S.Ct. 2551 (2015), which found the residual clause in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1)(ii), was void for vagueness and, therefore, unconstitutional. Subsequently, on April 18, 2016, in Welch v. United States, 578 U.S., 136 S.Ct. 1257 (2016), the Supreme Court held that the newly established right recognized in Johnson is retroactive to cases on collateral review. Nicolai contends that that his conviction for a violation of 18 U.S.C. § 2252 and his sentence enhancement under § 2G1.3 of the United States Sentencing Guideline are void as these code and Guideline sections are unconstitutionally vague. In response, the Government contends this petition is untimely and also fails on its merits. Specifically, the Government argues that Johnson is inapplicable as Nicolai was not sentenced under the ACCA or as a career offender.

         First, as the Government points out Nicolai's claim under Johnson is without merit because Nicolai was not sentenced under the ACCA, or as a career offender under U.S.S.G. § 4B1.1. The holding in Johnson and its progeny have no effect on the statute or enhancements for possessing child pornography. See United States v. Wyatt Cr. No.3:12-899-CMC, 2016 WL 6157493 (D.S.C. Oct. 24, 2016). The holding in Johnson is limited to the ACCA, and does not extend to the offense of child pornography. Moreover, in Beckles v. United States, the Supreme Court clarified that the reasoning behind the Johnson decision does not apply in the context of the Sentencing Guidelines. Beckles v. United States, 137 S.Ct. 886, 892 (2017). In Beckles, the Court held that

the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range. Accordingly, the Guidelines are not subject to a vagueness challenge under the Due Process Clause. The residual clause in § 4B1.2(a)(2) therefore is not void for vagueness.

Beckles, 137 S.Ct. at 893. Nicolai does not explain how Johnson could apply to his child pornography conviction or sentence. Accordingly, he has no potential claim under Johnson or Welch.

         Moreover, the court finds this motion is untimely A one-year period of limitation applies to motions under § 2255.

         The limitation period shall run from the latest of -

(1) the date on which the judgment of conviction becomes ...

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