United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PETITIONER'S MOTION TO, VACATE, SET
ASIDE OR CORRECT HIS SENTENCE PURSUANT TO 28 U.S.C. §
CARAM STEEH UNITED STATES DISTRICT JUDGE.
before the court is Petitioner Marlon Allen's motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. This matter was stayed pending the
Supreme Court's decision in Beckles v. United
States, 137 S.Ct. 886 (2017) which was rendered on March
6, 2017. Accordingly, the stay is now lifted and the court
considers Petitioner's motion. Because Beckles
held that the Sentencing Guidelines are not subject to void
for vagueness analysis, Petitioner's § 2255 motion
is time-barred and shall be dismissed.
Factual and Procedural Background
October, 2012, Petitioner pleaded guilty to a charge of felon
in possession of a firearm in violation of 18 U.S.C. §
922(g)(1) after having been previously convicted in state
court of a controlled substance offense and felony assault
with intent to do great bodily harm. The presentence
investigation report prepared by the United States Probation
Office recommended that Petitioner's offense level be
enhanced as a career offender under USSG § 4B1.1 because
Petitioner had at least two prior felony convictions of
either a crime of violence or a controlled substance offense.
Although Petitioner pleaded guilty to the charge of felon in
possession of a firearm, he also stipulated within his plea
agreement to the offense of possession with intent to
distribute crack cocaine in violation of 21 U.S.C. §
841(a)(1), which contributed to his classification as a
probation department applied the career offender enhancement
and arrived at a sentencing guideline range of 188 to 135
months, but recognized that the statutorily authorized
maximum sentence of 10 years was less than the minimum of the
applicable guideline range, and thus the guideline term of
imprisonment was 120 months. Also, pursuant to the plea
agreement, the parties stipulated to a sentencing guideline
range of 120 months. On February 11, 2013, this court imposed
a prison sentence of 120 months. Petitioner chose not to
appeal either his conviction or sentence.
two years later, the Supreme Court decided Johnson v.
United States, 135 S.Ct. 2551, 256s3 (2015), which
invalidated the residual clause of the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii),
which defines the term “violent felony” to
include an offense that “involves conduct that presents
a serious potential risk of physical injury to another,
” as unconstitutionally vague. In this case, on June
13, 2016, Petitioner filed a pro se motion to
vacate, set aside, or correct the sentence previously imposed
upon him, pursuant to 28 U.S.C. § 2255. Petitioner
argues that his guideline sentence must be vacated in light
of Johnson because the definition of “crime of
violence” used in the career offender enhancement, USSG
§ 4B1.1, is couched in the same language as the residual
clause of the ACCA, and thus, is likewise void for vagueness.
previously mentioned, Petitioner did not appeal from this
court's February 11, 2013 entry of judgment that imposed
a 120-month sentence. That judgment became final on February
25, 2013. See Sanchez-Castellano v. United States,
358 F.3d 424, 427 (6th Cir. 2004). As a result,
Petitioner's June, 2016 motion was not filed within one
year of the date his judgment of conviction became final, as
required by 28 U.S.C. § 2255(f)(1). Recognizing this,
Petitioner argues an exception applies pursuant to 28 U.S.C.
§ 2255(f)(3) and that his motion is timely because it
was filed within one year of the date on which the asserted
right was recognized by the Supreme Court and made
retroactively applicable to cases on collateral review.
Specifically, Petitioner relies on the Johnson
decision to extend his time for filing a § 2255 motion.
But Petitioner cannot show that Johnson recognized a
new right retroactively applicable to him, as
Beckles held that Johnson does not provide
relief to individuals raising void-for-vagueness challenges
to the Sentencing Guidelines. Beckles, 137 S.Ct. at
894; Harris v. United States, No. 16-3332, __ F.
App'x __, 2017 WL 1379472, at *3 (6th Cir. Apr. 17,
2017). Accordingly, Petitioner's motion
is time barred and must be dismissed.
reasons discussed above, the stay is lifted and
Petitioner's § 2255 motion is DENIED and DISMISSED
WITH PREJUDICE. The court CERTIFIES that any appeal from this
action would not be taken in good faith. Accordingly,
Petitioner is DENIED leave to proceed in forma
pauperis on appeal. See Fed. R. App. P. 24.
Petitioner having failed to make a substantial showing of the
denial of a ...