United States District Court, M.D. Pennsylvania
William W. Caldwell, United States District Judge.
this court is Defendant Anthony Knight's motion (Doc.
314) for release on bond pending disposition of his motion
under 28 U.S.C. § 2255. Defendant currently has a §
2255 motion pending before this court (Doc. 308), which was
stayed pending the United States Supreme Court's decision
in Beckles v. United States, 616 F. App'x 415
(11th Cir. 2015) (per curiam), cert. granted, 136
S.Ct. 2510 (2016) (mem.). (Doc. 313). Defendant now argues
that, because he is projected to be released from prison on
April 19, 2017, and because the Supreme Court may not decide
Beckles by that time, exceptional circumstances
exist and a grant of bond pending the outcome of his §
2255 motion is necessary to avoid irreparable
harm-specifically, his continued incarceration for the next
several months. (Doc. 315 at 3); (Doc. 318 at 3-4). For the
reasons that follow, we will deny Defendant's motion.
November 5, 2008, an indictment was filed charging Defendant
and five other co-defendants with drug trafficking, firearms,
and conspiracy offenses. (Doc. 90). On May 13, 2013,
Defendant pled guilty, pursuant to a negotiated plea
agreement, to Count Seven of the indictment, which charged
him with being a felon in possession of a firearm, 18 U.S.C.
§ 922(g)(1). (Doc. 90 at 7); (Doc. 264 at 1); (Doc.
Presentence Investigation Report (PSR) was filed, which
determined, under United States Sentencing Guideline
(U.S.S.G.) § 2K2.1(a)(2), that Defendant's base
offense level was 24 because he committed Count Seven
subsequent to sustaining at least two felony convictions for
crimes of violence; specifically, the PSR listed prior
convictions for attempted robbery in 1988, escape in 2000,
and resisting arrest in 2005. (PSR ¶¶ 14, 27, 35,
37). After applying a two-level reduction for acceptance of
responsibility, U.S.S.G. § 3E1.1(a)-(b), Defendant's
total offense level was 22, and, taking into account his
Category VI criminal history, his Guideline range was 84 to
105 months' imprisonment. (PSR ¶¶ 20-21, 65).
On July 8, 2014, this court adopted the PSR, granted a
downward variance based on 18 U.S.C. § 2553(a), and
sentenced Defendant to 60 months' imprisonment. (Doc.
23, 2016, Defendant filed a motion to correct sentence under
§ 2255 claiming that the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015)
(holding the residual clause of the Armed Career Criminal Act
(ACCA) unconstitutionally void for vagueness), is applicable
to his sentencing under the career offender guideline,
U.S.S.G. § 4B1.2(a), and that his prior convictions for
attempted robbery, escape, and resisting arrest are no longer
crimes of violence for which he could be subject to a
sentencing enhancement. (Doc. 308). Without the enhancement,
Defendant's Guideline range would be 21 to 27 months'
imprisonment. (Doc. 315 at 3). On August 31, 2016, we stayed
Defendant's § 2255 motion until the Supreme
Court's decision in Beckles. (Doc. 313).
Following our stay, Defendant filed the instant motion
requesting release on bond pending the disposition of his
§ 2255 motion. (Doc. 314).
courts have the discretion to order bail on bond pending the
outcome of § 2255 proceedings. See United States v.
Smith, 835 F.2d 1048, 1050 (3d Cir. 1987); see also
United States v. Weicksel, 517 F.App'x 67, 68 (3d
Cir. 2013) (referencing standard in Smith with
regard to bail pending disposition of § 2255 motion).
“[C]ourts that have been faced with requests for bail
prior to ruling on a [§ 2255 motion] have developed
standards requiring that a [defendant] (1) make out a clear
case for  relief on the law and facts, or (2) establish
that exceptional circumstances exist warranting special
treatment, or both.” Lucas v. Hadden, 790 F.2d
365, 367 (3d Cir. 1986). “[A]s a threshold matter, the
[defendant] bears the burden of showing that [his] case
presents extraordinary circumstances warranting bail
consideration.” Leslie v. Holder, 865
F.Supp.2d 627, 635 (M.D. Pa. 2012). “In making this
threshold determination we are cautioned to consider both the
merits of the claims made in the [defendant's § 2255
motion], and to ascertain whether the case presents
exceptional circumstances which make the [defendant] a proper
candidate for bail.” Id. at 635-36.
exceptional-circumstances standard “reflects the
recognition that a preliminary grant of bail is an
exceptional form of relief in a [§ 2255]
proceeding.” Lucas, 790 F.2d at 367. To meet
this standard, a defendant must make a “‘strong
showing that he is likely to succeed on the merits, '
irreparable injury, injury to other parties interested in the
proceeding, and the public interest.” Smith,
835 F.2d at 1050 (quoting Hilton v. Braunskill, 107
S.Ct. 2113, 2119 (1987)). Bail pending review of a §
2255 motion is typically available “only when the
[defendant] has raised substantial constitutional claims upon
which he has a high probability of success, and also when
extraordinary or exceptional circumstances exist which make
the grant of bail necessary to make the habeas remedy
effective.” Landano v. Rafferty, 970 F.2d
1230, 1239 (3d Cir. 1992).
Defendant argues that he has made a clear case for §
2255 relief. His § 2255 argument is as follows: the
Supreme Court in Johnson held the residual clause of
the ACCA unconstitutionally vague, and that ruling was made
retroactive to cases on collateral review in Welch v.
United States, 136 S.Ct. 1257 (2016); Defendant received
a sentencing enhancement under the career offender guideline,
U.S.S.G. § 4B1.2, because it was determined that he had
at least two prior convictions for crimes of violence; §
4B1.2 contains an identical residual clause to that which was
found unconstitutional in Johnson, and Defendant
claims he was sentenced under § 4B1.2's residual
clause, as opposed to any of its other clauses; the Third
Circuit, on direct appeal, has held § 4B1.2's
residual clause unconstitutional in light of
Johnson, and some district courts have retroactively
applied that ruling to cases on collateral review; therefore,
Defendant's sentence should be vacated and he should be
resentenced without the career offender enhancement because
§ 4B1.2's residual clause is unconstitutional and
such a ruling is a “new right” recognized by the
Supreme Court that is retroactively applicable to his
contrary to his assertion, the relief to which Defendant
claims entitlement in his § 2255 motion is far from
clear; therefore, Defendant has failed to demonstrate a
likelihood of success on the merits of the motion. See
Smith, 835 F.2d at 1050; Landano, 970 F.2d at
1239. We stayed Defendant's § 2255 motion because
the Supreme Court in Beckles is slated
to-hopefully-answer the issues that Defendant raises
regarding the constitutionality of the career offender
guideline. The Supreme Court's decisions in
Johnson and Welch were limited to
defendants sentenced under the ACCA, and the Court did not
give any indication that it was creating a new right that was
applicable to defendants allegedly sentenced under the career
offender guideline's residual clause, let alone establish
that such a right would be retroactively applicable to cases
on collateral review. See, e.g., United States
v. Kenney, No. 1:92-CR-22, 2016 WL 7117919, at *3 (M.D.
Pa. Dec. 7, 2016) (Caldwell, J.) (“In short, neither
Johnson nor Welch sweeps so broadly so as
to create a newly recognized “right” that
encompasses collateral challenges to the vagueness of the
career offender guideline's residual clause.”).
Supreme Court in Beckles may or may not create a new
right to collaterally attack a sentence enhanced by the
career offender guideline's residual clause, or it may
pass on the issue altogether. If the Supreme Court declines
to address the issues of constitutionality or retroactivity
in Beckles, or if it decides that the career
offender guideline's residual clause is constitutional,
or if it decides that, even if the clause is
unconstitutional, such a ruling is not retroactive to cases
on collateral review, Defendant would face an insurmountable
time bar to his § 2255 motion. See 28 U.S.C.
§ 2255(f)(3) (setting one-year statute of limitations to
run from “the date on which the right asserted was
initially recognized by the Supreme Court”). As such,
in this case, the only way for Defendant's § 2255
motion-filed more than a year after his conviction became
final-to overcome the gatekeeping requirements of §
2255(f) is if the Supreme Court were to decide both issues in
Beckles (constitutionality and retroactivity) in a
way that allowed him to avail himself of § 2255(f)(3) to
make his § 2255 motion timely. The Supreme Court has yet
to do either, and there is no way of knowing, beyond bare
conjecture, how the Court will ultimately rule on these
issues, or if it will decide them at all.
defendant may not be released pending a § 2255 motion
solely because he has stated a plausible claim to relief;
rather, he must make a “strong showing” that he
is likely to succeed on the merits of his motion.
Smith, 835 F.2d at 1050. Here, Defendant has not
made such a showing by simply speculating that the Supreme
Court will decide Beckles favorably in relation to
his § 2255 claim. Thus, Defendant has failed to meet his
burden of demonstrating a high probability that his §
2255 motion is likely to be timely, let alone demonstrate
that his motion is likely to succeed on its substantive
merits.Accordingly, we agree with the Government
that Defendant has presented “a ...