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United States v. Waters

United States District Court, W.D. Pennsylvania

January 4, 2018



          Donetta W. Ambrose Senior Judge

         In this action, Defendant pleaded guilty to violating 21 U.S.C. § 846. On December 10, 1999, he was sentenced to a term of imprisonment of 262 months, followed by a term of supervised release. His sentence was based, in part, on the career offender provisions of the then-mandatory Sentencing Guidelines.[1] On April 28, 2016, Defendant filed a Motion to Vacate pursuant to 28 U.S.C. § 2255. For the following reasons, Defendant's Motion will be denied as untimely.



         Relief is available under Section 2255 only under exceptional circumstances, when the claimed errors of law are "a fundamental defect which inherently results in a complete miscarriage of justice, " or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). A district court need not hold an evidentiary hearing on a Section 2255 motion if the motion, files, and records show conclusively that the defendant is not entitled to relief. United States v. Ritter, 93 Fed.Appx. 402 (3d Cir. 2004). In this case, a hearing is unnecessary, and the Motion will be disposed of on the record.


         Initially, Defendant argued that his prior convictions could have qualified only under the residual clause of U.S.S.G. § 4B1.2, and thus were invalid pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015). Defendant relied on United States v. Townsend, 638 F. App'x 172 (3d Cir. 2015), which has since been undermined by Beckles v. United States, 137 S.Ct. 886, 892 (2017). After Beckles, Defendant sought and received leave to supplement his Section 2255 Motion, and has done so.

         Presently, he suggests that Beckles, in holding that the advisory Guidelines are not subject to a vagueness challenge, left his mandatory Guidelines sentence vulnerable to attack via Johnson. Indeed, whether pre-Booker sentences are subject to such challenge was “not presented by” Beckles; the majority decision in Beckles “at least leaves [that question] open.” Beckles, 137 S.Ct. at 902 n. 4 (Ginsburg, J., concurring), 903 n. 4 (Sotomayor, J., concurring).

         A. Timeliness

         This Court cannot delve into the merits until it disposes of the Government's threshold challenge to the timeliness of Defendant's Motion. The parties acknowledge that the Motion is timely only if it complies with 28 U.S.C. § 2255(f)(3), which provides that the one-year limitation period may run from “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.”

         As the Court of Appeals for the Fourth Circuit observed, “[i]f the Supreme Court left open the question of whether Petitioner's asserted right exists, the Supreme Court has not ‘recognized' that right.” United States v. Brown, 868 F.3d 297 (4th Cir. 2017); see also Raybon v. United States, 867 F.3d 625, 630 (6th Cir. 2017). Therefore, for those sentenced under the mandatory Guidelines, Johnson does not trigger the operation of Section 2255(f)(3). See, e.g., Westrich v. United States, No. 16-17196, 2017 U.S. App. LEXIS 8165, at **6-7 (11th Cir. Apr. 26, 2017); United States v. Kenney, No. 92-22, 2017 U.S. Dist. LEXIS 134366, at *8 (M.D. Pa. Aug. 22, 2017); United States v. Green, No. 4:01-CR-0397, 2017 U.S. Dist. LEXIS 129812, at *4 (M.D. Pa. Aug. 15, 2017); Davis v. United States, No. 16-747, 2017 U.S. Dist. LEXIS 113898, at *12 (E.D. Wis. July 21, 2017) (collecting cases); United States v. Beraldo, No. 3-511, 2017 U.S. Dist. LEXIS 104050, at *4 (D. Or. July 5, 2017) (collecting cases). Although the consensus is not unbroken, see United States v. Roy, No. 00-40013, 2017 U.S. Dist. LEXIS 169425, at **14-15 (D. Mass. Oct. 13, 2017), [2] the weight of persuasive authority indicates the appropriate outcome here. Defendant's Motion will be deemed untimely.

         B. In re Hoffner

         The recent appearance of In re Hoffner, No. 15-2883, 2017 U.S. App. LEXIS 17284 (3d Cir. Sep. 7, 2017), does not affect the timeliness analysis. In Hoffner, our Court of Appeals considered whether to certify a second or successive Section 2255 motion filed by a defendant who had been sentenced as a career offender under the mandatory Guidelines. Id. at *2. The Court considered 28 U.S.C. § 2255(h)(2), under which the Court may certify a motion that “contain[s]…a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” “Contain[s], ” as used in this Section, has been interpreted as equivalent to “relies on.” Id. at *10 n. 9. The Court further indicated that whether a defendant “relies on” a qualifying rule entails a “permissive and flexible approach.” Id. at **10-14. In so doing, the Court stated that a “prima facie showing” involves only a "'sufficient showing' that the petitioner has satisfied the pre-filing requirements ‘to warrant a fuller exploration by the district court.'" Id. at *12. Applying these standards, our Court of Appeals assessed the narrow gatekeeping question of whether defendant made the prima facie showing required to file a second or successive habeas petition under 28 U.S.C. § 2244(b)(3)(C), and not the merits of “whether [defendant] has a meritorious vagueness claim under Johnson.” Id. at *1, *12.

         Moreover, in Hoffner, the Court of Appeals observed that following certification, the district court “will have the opportunity to determine anew … whether the petitioner has ‘show[n] that the claim satisfies the requirements of [Section 2244].” Id. at *14 (emphasis added). Section 2244 itself provides that if a successive habeas petition is authorized by the Court of Appeals, “[a] district court shall dismiss any claim presented…unless the applicant shows that the claim satisfies the requirements of [Section 2244].” 28 U.S.C. § 2244(b)(4). In turn, Section 2244 also requires that an asserted claim rely on a new rule of constitutional law. Id. at § 2244(b)(2)(A). Accordingly, the Hoffner Court further stated that it is for the district court to decide “'whether the invoked new rule should ultimately be extended in the way that the movant ...

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