United States District Court, W.D. Pennsylvania
FLOWERS CONTI SENIOR UNITED STATES DISTRICT JUDGE.
before the court are a § 2255 motion and an amended
§ 2255 filed by counsel on behalf of defendant John C.
Kenney (“Kenney”) to vacate his sentence based on
his designation as a career offender under the
“mandatory” sentencing guidelines (Civ. No.
16-837, ECF Nos. 1, 6; Civ. No. 17-1341, ECF No.
The government filed a response in opposition, arguing that
the motions were untimely filed. (ECF No. 8). The motions
were stayed at the request of the parties pending resolution
of potentially dispositive legal issues by the United States
Supreme Court and United States Court of Appeals for the
Third Circuit. Kenney's counsel filed a notice that the
§ 2255 motions are now ripe for decision.
the notice provides that because the United States Supreme
Court denied certiorari in United States v. Green,
No. 18-8435, the Third Circuit Court of Appeals' decision
in United States v. Green, 898 F.3d 315 (3d Cir.
2018), which is controlling, is now final. (ECF No. 18). As
Kenney recognizes, “the Third Circuit held that
Johnson v. United States, 135 S.Ct. 2551 (2015), did
not constitute a newly recognized right, such that a
petitioner who was sentenced under the then-mandatory
guidelines and who filed a petition under 28 U.S.C. §
2255 within one year of Johnson, did not file a
timely § 2255 petition.” Id.
was sentenced on May 29, 1992, to a term of imprisonment of
262 months under the pre-Booker,
“mandatory” guidelines regime. He was designated
as a career offender based on prior convictions for simple
assault and robbery. Although the one-year time limit to file
a § 2255 motion is long expired, Kenney contends that
his § 2255 motion is timely pursuant to 28 U.S.C. §
2255(f)(3) because it was filed within one year of
Johnson. Kenney argues that Johnson
(holding that the “residual clause” of the Armed
Career Criminal Act was unconstitutionally vague) created a
right newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review.
Green, the Third Circuit Court of Appeals rejected
this argument. The court reasoned that the Supreme
Court's decision in Johnson did not
“recognize” a new right for defendants sentenced
under the similar “residual clause” in the
mandatory sentencing guidelines because that remained an
“open question” after Beckles v. United
States, 137 S.Ct. 886 (2018) (rejecting a vagueness
challenge to the residual clause in the advisory sentencing
guidelines regime). The court explained in Green:
We hold that Green's motion is untimely in light of the
plain language of 28 U.S.C. § 2255(f)(3) and the Supreme
Court's indication in Beckles [v. United
States, 137 S.Ct. 886 (2018), ] that it remains an open
question whether the mandatory Sentencing Guidelines can be
subject to vagueness challenges. In so holding, we do not
speak to the merits of Green's claim, and do not decide
whether the residual clause in the mandatory Sentencing
Guidelines is unconstitutionally vague. Only the Supreme
Court can recognize the right that would render Green's
motion timely under § 2255(f)(3).
898 F.3d at 322. Green's § 2255 motion was denied as
Kenney's § 2255 motion is procedurally identical to
Green's, it must also be denied as untimely filed.
See Polanco v. United States, No. CV 16-3769 (KSH),
2019 WL 2385889, at *4 (D.N.J. June 6, 2019) (Green
is “procedurally indistinguishable” from §
2255 challenge to sentence as a career offender under the
then-mandatory guidelines and compels dismissal of motion as
reasons set forth above, the § 2255 motion and amended
motion filed by Kenney (Civ. No. 16-837, ECF Nos. 1, 6; Civ.
No. 17-1341, ECF No. 1) are untimely filed and must be
to 28 U.S.C. § 2253(c)(2), a certificate of
appealability may issue only if the applicant has made a
substantial showing of the denial of a constitutional right.
Because Kenney did not meet this standard, a certificate of
appealability will not issue. Civil Action Nos. 16-837 and
17-1341 will be closed.
appropriate order follows.