United States District Court, D. South Carolina, Florence Division
BRYAN HARWELL UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner's [ECF No. 169]
motion to vacate pursuant to 28 U.S.C. § 2255. Relying
on Johnson v. United States, 135 S.Ct. 2551 (2015),
Petitioner argues he is no longer a career offender under the
United States Sentencing Guidelines.
31, 2017, the government filed a response and motion to
dismiss arguing Petitioner's Johnson claim fails
in light of Beckles v. United States, 137 S.Ct. 886
(2017). The government also argues that Petitioner's
claim of misapplication of the Sentencing Guidelines is not
cognizable on collateral review. The government also argues
that Petitioner's claim is procedurally defaulted and
untimely. On June 14, 2017, Petitioner, through counsel,
filed a response to the government's motion for summary
judgment acknowledging that this case is controlled by
Beckles but contending that Beckles was
wrongly decided. Alternatively, Petitioner seeks dismissal of
this matter without prejudice. For the reasons stated below,
the Court grants the government's motion to dismiss,
dismisses Petitioner's motion to vacate, and dismisses
this case with prejudice.
January 8, 2009, Petitioner pled guilty to conspiracy to
possess with intent to distribute 5 grams or more of cocaine
base and a quantity of cocaine in violation of 21 U.S.C.
§ 846. The presentence investigation report
(“PSR”) prepared by the U.S. Probation Office
determined that Petitioner was a career offender pursuant to
U.S.S.G. § 4B1.1. Petitioner's total offense level
of 34 and criminal history category of VI produced an
advisory guideline range of 262 to 327 months in prison.
sentencing hearing was held on December 12, 2013. The Court
sentenced Petitioner to a 180 month term of imprisonment.
Petitioner did not file a direct appeal, but filed two
motions to vacate under 28 U.S.C. § 2255 prior to the
instant motion. Those motions to vacate were denied.
24, 2016, the Fourth Circuit Court of Appeals authorized
Petitioner to file a successive habeas application after
Johnson. The instant motion to vacate was filed on
June 24, 2016.
in federal custody may attack the validity of their sentences
pursuant to 28 U.S.C. § 2255. In order to move the court
to vacate, set aside, or correct a sentence under §
2255, a petitioner must prove that one of the following
occurred: (1) a 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). “The writ of habeas corpus
and its federal counterpart, 28 U.S.C. § 2255,
‘will not be allowed to do service for an appeal.'
(internal citation omitted). For this reason,
nonconstitutional claims that could have been raised on
appeal, but were not, may not be asserted in collateral
proceedings. (internal citations omitted) Even those
nonconstitutional claims that could not have been asserted on
direct appeal can be raised on collateral review only if the
alleged error constituted ‘a fundamental defect which
inherently results in a complete miscarriage of
justice'”. Stone v. Powell, 428 U.S. 465,
n. 10 (1976); see also United States v. Boyd, No.
02-6242, 2002 WL 1932522, at *1 (4th Cir Aug. 22, 2002)
(“Non-constitutional claims that could have been raised
on direct appeal . . . may not be raised in a collateral
proceeding under § 2255.”).
government argues Petitioner's Johnson claim
that he was improperly classified a career offender under the
Sentencing Guidelines fails in light of Beckles. In
Beckles, the Supreme Court declined to extend
Johnson to the Sentencing Guidelines and held the
Sentencing Guidelines are not subject to a vagueness
challenge under the Due Process clause and the residual
clause found in former § 4B1.2(a)(2) of the Sentencing
Guidelines is not void-for-vagueness. Beckles, 137
S.Ct. at 895. Thus, Petitioner's reliance on
Johnson is misplaced and his challenge to his career
offender designation fails.
government also argues that Petitioner's claim of
misapplication of the Sentencing Guidelines is not cognizable
on collateral review. In United States v. Foote, 784
F.3d 931, 940 (4th Cir. 2015), the Fourth Circuit Court of
Appeals held that a § 2255 motion to vacate that was
based on a subsequently-nullified career offender designation
was not a fundamental defect, as required to challenge a
sentence on a motion to vacate. Foote, 784 F.3d at
940. Applying Foote to the instant case,
Petitioner's claim that he was improperly classified a
career offender based on a prior offense that Petitioner
claims is no longer a crime of violence is not cognizable on
collateral review. Petitioner has failed to demonstrate a
fundamental defect or miscarriage of justice. Petitioner was
sentenced well below his advisory guideline level of 262 to
Court also finds that Petitioner's claim is procedurally
defaulted and untimely.
foregoing reasons, Petitioner's motion to vacate under 28