United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
VACATE AND DECLINING TO ISSUE A CERTIFICATE OF
H. CLELAND UNITED STATES DISTRICT JUDGE.
Bob Best pleaded guilty to four counts of bank robbery under
18 U.S.C. § 2113(a) and was sentenced to a term of
imprisonment of 170 months. He was released from federal
custody on April 28, 2017, and is currently serving a
three-year term of supervised release. Defendant was
sentenced as a Career Offender under U.S.S.G. § 4B1.1
based on his two prior convictions for Michigan Armed Robbery
and Assault of a Prison Employee and Escape from Jail. This
matter comes before the court for consideration of
Defendant's second Motion to Vacate under 28 U.S.C.
§ 2255. (ECF No. 61.)
court denied as untimely Defendant's original Motion to
Vacate. (ECF Nos. 52, 58.) Six years later, Defendant applied
for and was granted an application to file a second or
successive habeas petition by the Sixth Circuit.
Defendant's second Motion to Vacate is now before this
court. In this motion, Defendant argues that he no longer
qualifies as a Career Offender in light of Johnson v.
United States, 136 S.Ct. 1257 (2016), which held that
the residual clause of the Armed Career Criminal Act was
unconstitutionally vague. Defendant argues that
Johnson's holding extends to the residual clause
of the Career Offender Sentencing Guidelines, under which
Defendant was sentenced, and that his two predicate offenses
no longer satisfy the definition for crimes of violence. The
Government, in response, argues that his motion is untimely.
Defendant did not file a reply. For the reasons explained
below, the court will deny Defendant's motion and will
decline to issue a certificate of appealability.
§ 2255, a prisoner sentenced by a federal court may
“move the court which imposed the sentence to vacate,
set aside or correct the sentence” on the grounds
“that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a). As “[§] 2255 is not a substitute
for a direct appeal, ” Regalado v. United
States, 334 F.3d 520, 528 (6th Cir. 2003) (citing
United States v. Frady, 456 U.S. 152, 167-68
(1982)), “a prisoner must clear a significantly higher
hurdle than would exist on direct appeal” to merit
collateral relief. Frady, 456 U.S. at 166.
Consequently, “[t]o prevail on a § 2255 motion
alleging constitutional error, the petitioner must establish
an error of constitutional magnitude which had a substantial
and injurious effect or influence on the proceedings.”
Watson v. United States, 165 F.3d 486, 488 (6th Cir.
1999) (citing Brecht v. Abrahamson, 507 U.S. 619,
non-constitutional errors are generally outside the scope of
§ 2255 relief, see United States v. Cofield,
233 F.3d 405, 407 (6th Cir. 2000), a petitioner can prevail
on a § 2255 motion alleging non-constitutional error
“establish[ing] 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, 165 F.3d at 488
(internal quotation marks omitted) (quoting United States
v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990)).
court cuts to the merits of Defendant's claims. See
Pough v. United States, 442 F.3d 959, 965 (6th Cir.
2006). Defendant bases his Johnson argument on
United States v. Pawlak, 822 F.3d 902 (6th Cir.
2016), which extended the holding in Johnson to the
residual clause of U.S.S.G. § 4B1.2(a). He argues that
in light of Pawlak, he no longer has the predicate
offenses for a Career Offender enhancement because his crimes
qualify as crimes of violence under the residual clause
alone. For a time, Defendant's argument may be correct.
However, the Supreme Court later overruled Pawlak in
Beckles v. United States, 137 S.Ct. 886 (2017)
(“[T]he Guidelines are not subject to a vagueness
challenge under the Due Process Clause. The residual clause
in §4B1.2(a)(2) therefore is not void for
vagueness.”). Accordingly, Defendant cannot attack his
career offender status based on Johnson because
Johnson did not invalidate the residual clause of
the Sentencing Guidelines. Thus, even if his predicate
offenses only qualify as crimes of violence under the
residual clause of the Sentencing Guidelines, his enhancement
would stand. The court will deny his motion on this basis.
Rule of Appellate Procedure 22 provides that an appeal may
not proceed unless a certificate of appealability
(“COA”) is issued under 28 U.S.C. § 2253. A
COA may be issued “only if the applicant has made a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). A petitioner must
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, 484 (2000) (citing Barefoot v. Estelle, 463
U.S. 880, 893 (1983)). In this case, the court concludes that
reasonable jurists would not debate the court's ruling
regarding Defendant's habeas claims. Therefore, the court
will deny a certificate of appealability.
ORDERED that Defendant's Motion to Vacate (ECF ...