United States District Court, W.D. Michigan, Southern Division
T. NEFF, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Movant's motion to
vacate, set aside or correct sentence under 28 U.S.C. §
2255. (ECF No. 1.) On May 2, 2016, the Government filed a
response in opposition. (ECF No. 5.) The Court appointed
counsel and stayed the motion, pending the Supreme
Court's decision in Beckles v. United States, __
U.S. __, 2017 WL 855781 (Mar. 6, 2017), and ordered Movant to
file supplemental briefing post-Beckles. On March
17, 2017, Movant filed a supplemental brief, explaining that
his challenge to the enhancement of his offense level under
U.S.S.G. § 2K2.1 does not survive Beckles. (ECF
No. 9.) For the reasons that follow, Movant's § 2255
motion is denied.
26, 2012, a grand jury indicted Movant on one charge of
possession of a firearm and ammunition. (Indictment,
United States v. Norwood, No. 1:12-cr-189 (W.D.
Mich.), ECF No. 1.) On October 25, 2012, he pleaded guilty to
the offense. The Court sentenced him to 84 months in prison.
(J., id. at ECF No. 24, PageID.93-98.) On direct
appeal, Movant challenged the Court's application of a
sentencing enhancement for possession of a firearm in
connection with another felony. On May 20, 2014, the United
States Court of Appeals for the Sixth Circuit rejected this
argument and affirmed Movant's conviction and sentence.
United States v. Norwood, No. 13-1315 (6th Cir. Apr.
25, 2014) (unpublished order). On February 22, 2016, Movant
filed this motion to vacate, set aside, or correct his
sentence under § 2255. In his supplement brief, Movant
notes that only one of his claims has any arguable merit: his
criminal sexual conduct conviction is not a crime of
prisoner who moves to vacate his sentence under § 2255
must show that the sentence was imposed in violation of the
Constitution or laws of the United States, that the court was
without jurisdiction to impose such a sentence, that the
sentence was in excess of the maximum authorized by law, or
that it is otherwise subject to collateral attack. 28 U.S.C.
§ 2255. To prevail on a § 2255 motion
“‘a petitioner must demonstrate the existence of
an error of constitutional magnitude which had a substantial
and injurious effect or influence on the guilty plea or the
jury's verdict.'” Humphress v. United
States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting
Griffin v. United States, 330 F.3d 733, 736 (6th
errors are generally outside the scope of § 2255 relief.
United States v. Cofield, 233 F.3d 405, 407 (6th
Cir. 2000). A petitioner can prevail on a § 2255 motion
alleging non-constitutional error only by establishing a
“fundamental defect which inherently results in a
complete miscarriage of justice, or, an error so egregious
that it amounts to a violation of due process.”
Watson v. United States, 165 F.3d 486, 488 (6th Cir.
1999) (quoting United States v. Ferguson, 918 F.2d
627, 630 (6th Cir. 1990) (internal quotations omitted)).
general rule, claims not raised on direct appeal are
procedurally defaulted and may not be raised on collateral
review unless the petitioner shows either (1)
“cause” and “actual prejudice” or (2)
“actual innocence.” Massaro v. United
States, 538 U.S. 500, 504 (2003); Bousley v. United
States, 523 U.S. 614, 621-22 (1998); United States
v. Frady, 456 U.S. 152, 167-68 (1982). An ineffective
assistance of counsel claim, however, is not subject to the
procedural default rule. Massaro, 538 U.S. at 504.
An ineffective assistance of counsel claim may be raised in a
collateral proceeding under § 2255, whether or not the
petitioner could have raised the claim on direct appeal.
Anti-terrorism and Effective Death Penalty Act
(“AEDPA”) sets a one-year statute of limitations
from the date of the final judgment for § 2255 petitions
or the date on which the right asserted was initially
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review. 28 U.S.C. §
2255(f). A judgment is final 90 days from the appellate
mandate. Clay v. United States, 537 U.S. 522 (2003).
Sixth Circuit issued its mandate on May 20, 2014.
(Norwood, No. 1:12-cr-189, at ECF No. 29.)
Movant's conviction became final on August 18, 2014; and
he had one year from that date to file his § 2255
motion. But Movant did not file his motion until February 22,
2016. The government argues that Movant did not timely file
his petition, so his claims are time-barred. This is true for
all of Movant's claims except for his claim arising from
Johnson v. United States, 135 S.Ct. 2551
26, 2015, the Supreme Court held that the Armed Career
Criminal Act's “residual clause”-which
defined a “violent felony” to include an offense
that “otherwise involves conduct that presents a
serious potential risk of physical injury to another, ”
18 U.S.C. § 924(e)(2)(B)(ii)-is unconstitutionally vague
in violation of due process. Johnson, 135 S.Ct. at
2563. In Welch v. United States, 136 S.Ct. 1257
(2016), the Supreme Court held that Johnson applied
retroactively on collateral review. Therefore, Movant had one
year from the date on which the right asserted was initially
recognized by the Supreme Court-July 26, 2015-to file his
§ 2255 petition raising a Johnson claim. 28
U.S.C. § 2255(f)(3). Movant's Johnson claim
is timely and the Court need not assess whether Movant is
entitled to equitable tolling as to his other claims because
Movant concedes that his Johnson claim is the only
arguably meritorious claim. (ECF No. 9, PageID.51.)
raises two arguments in relation to his Johnson
claim. First, Movant argues that his claim survives
Beckles v. United States, __ U.S. __, 2017 WL 855781
(Mar. 6, 2017), because the Supreme Court explicitly stated
that its holding did not render the Guidelines immune from
constitutional scrutiny. Beckles, 2017 WL 855781, at
*9. Movant contends that he is permitted to raise an Eighth
Amendment claim, and argues that the difficulties in
interpreting the residual clause highlighted in
Johnson leave the sentencing court without
sufficient guidance to determine the nature of a
defendant's criminal history and thus, violate his rights
under Eighth Amendment. (ECF No. 9, PageID.52.) This it not a
true Johnson claim. Rather, this is an attempt to
get around the statute of limitations by citing
Johnson. In Johnson, the Supreme Court
invalidated the Armed Career Criminal Act's
(“ACCA”) residual clause because its application
violated due process. Johnson, 135 S.Ct. at 2557.
Here, Movant does not allege a due process ...