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. 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
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
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
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.
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.”).
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.
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)
Court also finds that Petitioner's claim is procedurally
defaulted and untimely.
foregoing reasons, Petitioner's motion to vacate under 28
U.S.C. § 2255 is due to be dismissed.