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United States v. King

United States District Court, M.D. Pennsylvania

September 20, 2019

UNITED STATES OF AMERICA,
v.
JAMES KING, [1] Defendant

          MEMORANDUM

          Malachy E. Mannion, United States District Judge.

         I. BACKGROUND[2]

         On March 28, 2016, the court issued a Memorandum and Order, (Doc. 58, Doc. 59), and denied defendant James King’s February 5, 2016 motion to vacate, set aside or correct sentence, (Doc. 52), filed pursuant to 28 U.S.C. §2255. King’s §2255 motion was based on Johnson v. United States, __U.S. __, 135 S.Ct. 2551 (2015). The court found that King was determined to be a career offender at his sentencing based in part on his three prior convictions for controlled substance offenses and that Johnson did not apply to the definition of controlled substance offense contained in the sentencing guidelines. Thus, the court denied King’s first §2255 motion on the merits. In its Order, the court specifically held that there was no probable cause to issue a certificate of appealability (“COA”).

         On October 17, 2016, the court issued a Memorandum and Order, (Docs. 66 & 67), and granted King’s motion to reopen the time to file an appeal under Fed.R.App.P. 4(a)(6) and motion for an extension of time to file a notice of appeal with respect to the court’s March 28, 2016 Order denying his §2255 motion. In its Memorandum, the court pointed out that even though it was reopening the time for King to file an appeal under Fed.R.App.P. 4(a)(6), and granting his motion for an extension of time, it was doing so only to allow King to seek a COA from the Third Circuit. The court also noted that King could not yet properly file a notice of appeal since this court found in its March 28, 2016 Order that there was no probable cause to issue a COA. The court cited to U.S. v. Rinaldi, 447 F.3d 192, 194 (3d Cir. 2006) (“Under 28 U.S.C. §2253(c)(1)(B), ‘[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from the final order in a proceeding under section 2255.’”).

         King’s notice of appeal, (Doc. 64), construed as an application for a COA, was then transmitted to the Third Circuit.

         On December 21, 2016, the Third Circuit issued an Order denying King’s application for a COA. (Doc. 68). In its Order, the Court stated:

Reasonable jurists would not debate the District Court’s denial of Appellant [Kings’s] motion under 28 U.S.C. §2255. See 28 U.S.C. §2253(c); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). In that motion, Appellant [King] relied on Johnson v. United States, 135 S.Ct. 2551 (2015), in which the Supreme Court held that the “residual clause” of the Armed Career Criminal Act, which defines a “violent felony, ” was unconstitutionally vague. 135 S.Ct. at 2557. But, as the District Court explained, Johnson is inapplicable to Appellant because his sentence was not enhanced based solely on prior violent felonies. Rather, his sentence was enhanced under the Sentencing Guidelines based additionally on “three controlled substance offenses[, ]” which were not affected by Johnson. United States v. King, 588 Fed.Appx. 139, 140 (3d Cir. 2014) (not precedential).

         Despite the fact that this court declined to issue a COA and the Third Circuit denied King’s application for a COA to appeal the denial of his first §2255 motion, on August 19, 2019, King filed a second §2255 motion. (Doc. 71).

         On August 26, 2019, the government filed its opposition brief to King’s instant motion. (Doc. 73). King did not file a reply brief and the time to do so has expired.

         II. DISCUSSION

         King filed his second §2255 motion and he bases it on newly discovered evidence, i.e., he claims that the government breached his plea agreement by supporting the court’s determination that he was a career offender as found by the PSR. King claims that if he was sentenced without the career offender enhancement, his sentence would have been 120-months, i.e., the term the parties agreed to recommend in his plea agreement. As such, in his second or successive §2255 motion, King contends that there was a fundamental miscarriage of justice when the government breached his plea agreement.

         The government contends that King’s instant motion is a second or successive §2255 motion and that it should be dismissed by the court for lack of jurisdiction since King has not obtained the required COA from the Third Circuit.

         No doubt that “[King’s] [August 19, 2019] §2255 motion constitutes a second or successive §2255 motion because his previous §2255 motion was denied on the merits and his present §2255 motion attacks the same criminal judgment.” U.S. v. Hawkins, 614 F.App'x 580, 581 (3d Cir. 2015) (citation omitted). King’s instant §2255 motion is also successive because he clearly could have raised his argument that the government breached his plea agreement in his first §2255 motion. “The ...


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