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Romero v. United States

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

June 11, 2018

Faustin Bruce Romero, Petitioner,
v.
United States of America, Respondent.

          ORDER

          R. Bryan Harwell United States District Judge

         This matter is before the Court on Petitioner's [ECF No. 54] motion to vacate pursuant to 28 U.S.C. § 2255. Relying on Johnson v. United States, 135 S.Ct. 2551 (2015), Petitioner argues his base offense level was incorrectly determined because his prior conviction for Attempted Burglary is no longer a crime of violence under the Sentencing Guidelines.

         On June 30, 2016, the government filed a response and motion for summary judgment arguing that Petitioner's claim of misapplication of the Sentencing Guidelines is not cognizable on collateral review and that Johnson does not apply to Sentencing Guidelines claims. The government also argues that Petitioner's claim is procedurally defaulted. For the reasons stated below, the Court grants the government's motion for summary judgment, dismisses Petitioner's motion to vacate, and dismisses this case with prejudice.[1]

         Procedural History

         On April 17, 2013, Petitioner pled guilty to felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The presentence investigation report (“PSR”) prepared by the U.S. Probation Office determined that Petitioner had a base offense level of 20 based on a prior conviction for a crime of violence, specifically Attempted Burglary 2nd degree. [ECF No. 50 at 21]. Petitioner had a total offense level of 23 and criminal history category of VI, which produced an advisory guideline range of 92 to 115 months in prison.

         A sentencing hearing was held on August 14, 2014. The Court sentenced Petitioner to an 84 month term of imprisonment. Petitioner did not file a direct appeal. Petitioner filed the pending pro se motion to vacate on June 13, 2016.

         Applicable Law

         Prisoners 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.”).

         Discussion

         Petitioner's claim that his base offense level was incorrectly determined because his prior conviction for Attempted Burglary is no longer a crime of violence under 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 his base offense level was improperly determined is not cognizable on collateral review. Petitioner has failed to demonstrate a fundamental defect or miscarriage of justice. Petitioner was sentenced below the statutory maximum and below his advisory guideline level of 92 to 115 months.

         Petitioner's claim is also foreclosed by Beckles v. United States, 137 S.Ct. 886 (2017). Relying on Johnson v. United States, 135 S.Ct. 2551 (2015), Petitioner argues the residual clause of the sentencing guidelines is void for vagueness. In Beckles, however, 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 base offense level fails. Beckles v. United States, 137 S.Ct. 886 (2017)

         The Court also finds that Petitioner's claim is procedurally defaulted and untimely.

         For the foregoing reasons, Petitioner's motion to vacate under 28 U.S.C. § 2255 is due to be dismissed.

         IT ...


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