United States District Court, D. South Carolina
Nicholas J. Jackson, Petitioner,
United States of America, Respondent.
ORDER AND OPINION
matter is before the court on Petitioner's Motion to
Vacate under 28 U.S.C. § 2255. (ECF No. 1601.)
Petitioner seeks relief from his sentence under United
States v. Johnson, 135 S.Ct. 2551 (2015). (Id.
at 8.) For the reasons stated below, the court
DENIES Petitioner's Motion to Vacate
under U.S.C. § 2255 (ECF No. 1601).
FACTUAL AND PROCEDURAL BACKGROUND
January 13, 2014, Defendant pleaded guilty to conspiring with
the intent to distribute 500 grams or more of
methamphetamine, a Schedule II controlled substance. (ECF No.
1002.) Petitioner was sentenced to 130 months of
incarceration followed by five (5) years of supervised
release. (ECF No. 1229.). On March 6, 2017, Petitioner filed
a pro se Motion to Vacate under 28 U.S.C. §
2255. (ECF No. 1601.) The Government did not respond to
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. §
to 28 U.S.C. § 2555(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).
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).
asserts that his conviction and sentence is unconstitutional
because Career Offender Sentencing Guideline Enhancement
4B1.2, under which Petitioner was sentenced, “contains
identical language [to the language] struck in 18 U.S.C.
§ 924(e)(2)(B)(ii) [by Johnson].” (ECF
No. 1601 at 8.) Ultimately, Petitioner is asserting that his
sentence under U.S.S.G. § 4B1.2 violates his due process
rights and the laws of the United States.
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 to the United
States Constitution Due Process Clause. 135 S.Ct. at 2563.
The residual clause states that a violent felony includes
“[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 defendants
sentenced to the mandatory minimum sentence of fifteen (15)
years when the defendant qualified for the ACCA under the
residual clause of the statutory definition of violent
felony. 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).
cannot assert the new right recognized in Johnson
because Petitioner was not sentenced under the ACCA. Instead,
Petitioner was sentenced based upon the Career Offender
Sentencing Guidelines. Johnson only concerned the
residual clause of the ACCA, not the residual clause of the
Career Offender Sentencing Guidelines. See United States
v. Brown, 868 F.3d 297 (4th Cir. 2017)
(“Johnson did not discuss the mandatory
Sentencing Guidelines' residual clause at issue here or
residual clauses in other versions of the 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
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.Petitioner must
bring his claim under another section of 28 U.S.C. §
2255(f) and the only one that is available is 28 U.S.C.
§ 2255(f)(1). However, because Petitioner was sentenced
in 2014 and Petitioner's Motion (ECF No. 1601) was not
filed until 2017, the Motion is outside of the one-year
statute of limitations for filing a claim under 28 U.S.C.
§ 2255(f)(1). Therefore, Petitioner's Motion (ECF
No. 1601) is untimely.
reasons state above, the court DENIES
Petitioner's Motion to Vacate under 28 ...