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Price v. United States

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

April 26, 2018

Anthony Ray Price, Petitioner,
v.
United States of America Respondent. Criminal Action

          ORDER AND OPINION

         This matter is before the court on Petitioner's Motion to Vacate under 28 U.S.C. § 2255. (ECF No. 44.) Petitioner seeks relief from his sentence under United States v. Johnson, 135 S.Ct. 2551 (2015).[1] (See ECF No. 40 at 1.) For the reasons stated below, the court DENIES Petitioner's Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 44).

         I.FACTUAL AND PROCEDURAL BACKGROUND

         On April 11, 2006, Petitioner was indicted for being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and possessing crack cocaine with the intent to distribute, 21 U.S.C. § 841(a). (ECF No. 1.) On March 2, 2007, Petitioner pled guilty to being a felon in possession of a firearm (ECF No. 24) and was sentenced to 180 months imprisonment and five (5) years of supervised release (ECF No. 28). On January 25, 2016, this case was reassigned to the undersigned and Petitioner filed a Motion to Appoint Counsel in order that he may seek relief under Johnson. (ECF No. 40.) On March 16, 2016, the court granted Petitioner's Motion to Appoint Counsel (ECF No. 40). (ECF No. 42.) On June 20, 2016, Petitioner filed a pro se Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 44), and on July 19, 2016, the government responded (ECF No. 47).

         II. LEGAL STANDARD

         In order to move for relief under 28 U.S.C. § 2255, Petitioner must plead that he was sentenced “(1) in violation of the Constitution or laws of the United States, (2) the court was without jurisdiction to impose such sentence, (3) that the sentence was in excess of the maximum authorized by law, or (4) that his sentence is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).

         Pursuant to 28 U.S.C. § 2255(f), a petitioner has one year from the time his or her conviction becomes final to file a motion under this section, or one year from “the date on which the right asserted was initially recognized by the United States Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” See 28 U.S.C. § 2255(f)(1), (3).

         Because Petitioner is a pro se litigant, the court is required to liberally construe his arguments. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro se plaintiff's “inartful pleadings” may be sufficient enough to provide the opportunity to offer supporting evidence.)

         III. ANALYSIS

         Petitioner does not provide much support for the reason his sentence should be vacated, but liberally construing Petitioner's claim it seems that Petitioner asserts that his sentence is now in excess of the maximum authorized by law because he would not have fallen under the Armed Career Criminal Act (“ACCA”) given the Supreme Court's holding in Johnson. See 28 U.S.C. § 2255(a). As to the timeliness of Petitioner's Motion, the court presumes that Petitioner asserts that his Motion is timely pursuant to 28 U.S.C. § 2255(f)(3), given the new right recognized in Johnson.

         In Johnson v. United States, the United States Supreme Court held that the residual clause of the ACCA was unconstitutionally vague in violation of the Fifth Amendment Due Process Clause. 135 S.Ct. at 2563. The residual clause states that a violent felony could include “[crimes that involve] conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. §924(e)(2)(B). Johnson was decided on June 26, 2015, and presented a new right for people who were sentenced to a mandatory minimum sentence of fifteen (15) years when a court utilized the residual clause of the statutory definition of violent felony.[2] In Welch v. United States, the Supreme Court held that Johnson had a retroactive effect in cases on collateral review. 136 S.Ct. 1257, 1268 (2016).

         Petitioner seeks relief under Johnson, but its holding does not affect Petitioner's sentence because Petitioner's sentence was based on his previous serious drug offenses. In Johnson, the Supreme Court only ruled on the ambiguity of the residual clause within the statutory definition of violent felony under 18 U.S.C. § 924(e)(2)(B)(ii). Johnson, 135 S.Ct. at 2563. The Supreme Court did not address the statutory definition of “serious drug offense”[3] or call into question any other part of the statutory definition of violent felony. Id. Therefore, in his Motion, Petitioner cannot assert the new right recognized in Johnson, ultimately making his motion untimely under 28 U.S.C. § 2255(f).[4] Moreover, the Supreme Court's holding in Johnson would not change Petitioner's status because Petitioner was convicted of three (3) prior “serious drug offenses” which establishes that Petitioner could be sentenced under the ACCA.[5] See 18 U.S.C. § 924(e)(1).

         IV. CONCLUSION

         For the reasons stated above, the court DENIES Petitioner's Motion to Vacate under 28 U.S.C. § 2255.

         CERTIFICATE ...


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