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Dunn v. United States

United States District Court, D. South Carolina, Anderson/Greenwood Division

April 30, 2018

Ronnie Lee Dunn, 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. 87.) Petitioner seeks relief from his sentence under United States v. Johnson, 135 S.Ct. 2551 (2015). (Id. at 15.) For the reasons stated below, the court DENIES Petitioner's Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 87).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On February 24, 1998, a jury found Petitioner guilty of armed bank robbery in violation of 18 U.S.C. § 2113(a) and 18 U.S.C. § 924(c). (Id. at 16.) Petitioner was sentenced to 322 months of incarceration and five (5) years of supervised release. (Id.; see also ECF No. 25.) On June 30, 2014, Petitioner filed a Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 58), which the court dismissed (ECF No. 60). On June 24, 2016, the United States Court of Appeals for the Fourth Circuit granted Petitioner's Motion to file a successive Motion to Vacate under 28 U.S.C. § 2255. (ECF No. 83.) On the same day, Petitioner filed a pro se Motion to Vacate under 28 U.S.C. § 2255. (ECF No. 87.) The Government did not respond to Petitioner's Motion.

         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 asserts that “[i]n light of Johnson v. United States, [he] has no convictions that qualify as predicate offenses under U.S.S.G. § 4B1.1 [(Career Offender Sentencing Guidelines)].” (ECF No. 87 at 17.) Petitioner also asserts that “[h]is sentence is based in part on the residual clause [of U.S.S.G. § 4B1.1, ] and that provision was struck down by the Supreme Court.” (Id.) Petitioner ultimately asserts that his sentence under U.S.S.G. § 4B1.1 violates his due process rights and the laws the United States. (Id. at 14.)

         In Johnson v. United States, the United States Supreme Court held that the residual clause of the Armed Career Criminal Act (“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.[1] 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 was not sentenced under the ACCA, but under the Career Offender Sentencing Guidelines. In Beckles v. United States, the United States Supreme Court held that “[ ] the advisory Sentencing Guidelines are not subject to a due process vagueness challenge, §4B1.2(a)'s residual clause is not void for vagueness.” 137 S.Ct. 886, 897 (2017). The Sentencing Guidelines became advisory pursuant to the Supreme Court's holding in United States v. Booker, 543 U.S. 220 (2005). However, Petitioner was sentenced under the sentencing guidelines when they were mandatory, and in Beckles the Supreme Court did not address whether its holding applied to those defendants sentenced under the mandatory Sentencing Guidelines. See Beckles, 137 S.Ct. at 903 n.4.[2]

         The Fourth Circuit addressed whether defendants sentenced under the mandatory Sentencing Guidelines could utilize the holding in Johnson to collaterally attack their sentences under 28 U.S.C. § 2255. See United States v. Brown, 868 F.3d 297 (4th Cir. 2017). In Brown, the Fourth Circuit held that a § 2255 motion seeking to attack a defendant's sentence imposed under the mandatory guidelines does not fall within the statute of limitations in § 2255(f)(3) because the Supreme Court has not recognized a new right entitling the defendant to relief. See Brown, 868 F.3d at 304; see also United States v. Harris, No. CR 3:00-780-CMC, 2018 WL 1586431, at *2 (D.S.C. Apr. 2, 2018) (citing Brown).

         Petitioner cannot assert the new right recognized in Johnson because the holding in Johnson only concerned the residual clause of the ACCA, not the residual clause of the Sentencing Guidelines. See Brown, 868 F.3d at 302 (“Johnson did not discuss the mandatory Sentencing Guidelines' residual clause at issue here or residual clauses in other versions of the Sentencing Guidelines.”).[3] Therefore, because Petitioner cannot assert the new right recognized in Johnson, Petitioner cannot utilize 28 U.S.C. § 2255(f)(3) and the one-year time period after Johnson in order to file his claim. See Harris, 2018 WL 1586431, at *2. Petitioner must bring his claim under another subsection of 28 U.S.C. § 2255(f) and the only one that is available is subsection (f)(1).

         However, because Petitioner was convicted in 1997 and Petitioner's Motion (ECF No. 87) was filed well outside the one-year statute of limitations for filing his claim under 28 U.S.C. § ...


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