United States District Court, D. South Carolina, Florence Division
L. Wooten Senior United States District Judge.
matter comes before the Court for consideration of the
petition to vacate, set aside, or correct a sentence pursuant
to 28 U.S.C. § 2255 filed by Petitioner Willie Lee
Herriott. For the reasons stated below, the Court dismisses
pled guilty to a charge of possession with intent to
distribute 500 grams or more of cocaine and the Court
sentenced him as a career offender to 225 months imprisonment
pursuant to the then-mandatory Sentencing Guidelines. ECF No.
36. He filed a direct appeal, but the Fourth Circuit
affirmed. United States v. Herriott, 78 Fed.Appx.
247 (4th Cir. 2003). He did not file a petition for a writ of
certiorari from the Supreme Court.
filed a prior § 2255 petition, which the Court denied as
untimely and on the merits. No. 4:04-cv-23380-TLW, ECF Nos.
13, 2016, Petitioner filed in the Fourth Circuit a motion
pursuant to 28 U.S.C. § 2244 requesting permission to
file a successive § 2255 petition. No. 16-9218 (4th
Cir.), ECF No. 2-1. The Fourth Circuit granted that motion on
June 27, 2016, No. 16-9218 (4th Cir), ECF No. 10-2, and his
§ 2255 petition was filed in this Court on that date,
ECF No. 86.
petition, Petitioner argues that he should be resentenced
without the application of the career offender enhancement.
ECF No. 86. He argues that the Supreme Court's decision
in Johnson v. United States, 135 S.Ct. 2551 (2015),
which invalidated the Armed Career Criminal Act's
residual clause as unconstitutionally vague, also applies to
invalidate the residual clause in the career offender
sentencing guideline, formerly found at §
4B1.2(a)(2). He argues that, in light of
Johnson and other cases, he no longer has the
requisite No. of predicate convictions to be a career
offender. See ECF No. 86-1 at 5-8.
Government filed a motion for summary judgment, arguing, in
part, that the petition must be dismissed as untimely. ECF
is not entitled to relief based on the current state of the
law. In United States v. Brown, the Fourth Circuit
concluded that a § 2255 petitioner making substantially
the same argument as Petitioner-that he should be resentenced
because his career offender sentence imposed under the
mandatory Guidelines is now invalid-was not entitled to
relief because the Supreme Court had not recognized the
specific right at issue. 868 F.3d 297, 304 (4th Cir. 2017),
cert. denied, 139 S.Ct. 14 (2018); see also
Id. at 300 (noting that the Supreme Court in Beckles
v. United States, 137 S.Ct. 886 (2017) “expressly
declined to address the issue of whether the
pre-Booker mandatory Sentencing Guidelines are
amendable to void-for-vagueness challenges”). Because
Supreme Court recognition of that specific right was the only
possible avenue to render the petition timely, the Fourth
Circuit affirmed the district court's dismissal of the
petition. Id. at 304.
Court concludes that Petitioner here is in the same situation
as the petitioner in Brown. He is over eleven years
late under 28 U.S.C. § 2255(f)(1), (f)(2) and (f)(4) do
not apply, and he cannot restart the statute of limitations
under (f)(3) because the Supreme Court has not recognized the
specific right at issue. Accordingly, the Court is required
to dismiss his petition as untimely.
reasons stated, the Government's motion for summary
judgment, ECF No. 91, is GRANTED, and
Petitioner's petition for relief pursuant to § 2255,
ECF No. 86, is DISMISSED.
Court has reviewed this petition in accordance with Rule 11
of the Rules Governing Section 2255 Proceedings. In order for
the Court to issue a certificate of appealability, Rule 11
requires that Petitioner satisfy the requirements of 28
U.S.C. § 2253(c)(2), which in turn requires that he
“has made a substantial showing of the denial of a
constitutional right.” The Court concludes that he has
not made such a showing, and it is therefore not appropriate
to issue a certificate of appealability as to the issues
raised in this petition. Petitioner is advised that he may
seek a certificate from the Fourth Circuit Court of Appeals
under Rule 22 of the Federal Rules of Appellate Procedure.
IS SO ORDERED.