United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
VACATE UNDER 28 U.S.C. § 2255 AND DENYING A CERTIFICATE
H. CLELAND UNITED STATES DISTRICT JUDGE.
Josh Barnes was convicted by his plea of guilty to one count
of conspiracy to distribute and possession with intent to
distributed a controlled substance in violation of 21 U.S.C.
§§ 846, 841(a)(1), 841(b)(1)(C). His plea agreement
contemplated a guideline range of 130-162 months'
imprisonment (Dkt. #766 Pg. ID 3075); his presentence report
(“PSR”) set the guideline range at 151-188
months. The court sentenced Defendant to a below-guidelines
term of 72 months' imprisonment. (Dkt. #1046.) Now before
the court is Defendant's motion to vacate his sentence
under 28 U.S.C. § 2255. (Dkt. #1486.) For the following
reasons, Defendant's motion will be denied.
filed his motion to vacate his sentence pro se. After the
motion was filed, the government missed the deadline to
respond; realizing the mistake, it filed a motion “for
a finding of excusable neglect, ” explaining that the
government had not purposefully missed the response deadline,
but would still like to file a response. (Dkt. #1591.) The
court granted the motion and set a response deadline. (Dkt.
#1604.) Also after the pro se motion was filed, the court
appoint a federal defender to represent Defendant. (Dkt.
#1588.) Now before the court is Defendant's pro se motion
(Dkt. #1486), the government's response (Dkt. #1608), and
a reply filed by Defendant's counsel (Dkt. #1634).
28 U.S.C. § 2255, a prisoner sentenced by a federal
court “may move the court which imposed the sentence to
vacate, set aside or correct the sentence” where the
prisoner claims that the “sentence was imposed in
violation of the Constitution or laws of the United
States.” Not every asserted error of law may be raised
in a § 2255 motion, however. See Davis v. United
States, 417 U.S. 333, 346 (1974). Rather, the defendant
“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.” Griffin v. United States,
330 F.3d 733, 736 (6th Cir. 2003). The defendant, to be
entitled to relief, must establish “a fundamental
defect which inherently results in a complete miscarriage of
justice.” Id. (quoting Davis, 417
U.S. at 346).
raises one argument in support of his pro se motion to
vacate: his guideline sentencing range was improperly
calculated because he was deemed a “career
offender” under U.S.S.G. § 4B1.1(a).
here, U.S.S.G. § 4B1.1(a) provides that a defendant is a
“career offender” if, among other requirements,
“the defendant has at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.” At the time Defendant was
sentenced, the Sentencing Guidelines defined “crime of
violence” to include an offense “involv[ing]
conduct that presents a serious potential risk of physical
injury to another.” U.S.S.G. § 4B1.2(a)(2) (2015).
The Supreme Court invalidated identical language in the Armed
Career Criminal Act (“ACCA”) in Johnson v.
United States, ___ U.S. ___, 135 S.Ct. 2551 (2015); it
held that ACCA's residual clause, which defined
“violent felony” to include an offense
“involv[ing] conduct that presents a serious potential
risk of physical injury to another, ” was
unconstitutionally vague. Defendant argues that the
“career offender” language in the sentencing
guidelines must be invalidated on the same grounds, entitling
him to a shorter term of imprisonment.
motion to vacate and the response were filed before the
Supreme Court's decision in Beckles v. United
States, ___ U.S. ___, 137 S.Ct. 886 (2017). In
Beckles, the Court considered and rejected the
argument Defendant raises here, holding that-unlike the
ACCA-“the advisory Guidelines are not subject to
vagueness challenges.” Id. at 890. The
decision was, however, handed down before the reply was
filed; Defendant's counsel acknowledges that following
the Beckles decision, “the Sentencing
Guidelines are not subject to void for vagueness challenges
such as the one that underlies Mr. Barnes' pro se
Motion.” (Dkt. #1624 Pg. ID 16443.) Because
Defendant's only ground for relief has been expressly
foreclosed by the Supreme Court, his motion is properly
CERTIFICATE OF APPEALABILITY
appeal the court's decision, Defendant must obtain a
certificate of appealability. Obtaining a certificate of
appealability requires the defendant to make a substantial
showing of the denial of a constitutional right. 28 U.S.C.
§ 2253(c)(2). The applicant is required to show that
“reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were
‘adequate to deserve encouragement to proceed
further.'” Slack v. McDaniel, 529 U.S.
473, 483-84 (2000) (quoting Barefoot v. Estelle, 463
U.S. 880, 893 n.4 (1983)). A federal district court is
empowered to decide whether to issue a certificate of
appealability when it denies relief under § 2255.
Castro v. United States, 310 F.3d 900, 901 (6th Cir.
jurists of reason would not debate the court's analysis
with respect to Defendant's claim because his claim is
without merit. The court, therefore, will deny a certificate