United States District Court, N.D. Ohio
OPINION & ORDER [RESOLVING DOCS. 30, 33,
S. GWIN, UNITED STATES DISTRICT JUDGE:
August 19, 2013, Defendant Markcus D. Berry pled guilty to
being a felon in possession of a firearm. Berry petitions
for habeas corpus relief under 28 U.S.C. §
2255.Defendant says his sentence is
unconstitutional, he is actually innocent, and he received
ineffective assistance of counsel. These arguments lose.
Berry argues that his predicate offenses no longer qualify as
crimes of violence and he was improperly sentenced under the
United States Sentencing Guideline §
2K2.1. The Supreme Court's recent opinion in
Beckles v. United States forecloses his argument.
Berry's argument centers on the relationship between the
Guidelines and the Armed Career Criminals Act.
26, 2015, the Supreme Court gave an opinion in Johnson v.
United States, holding that the residual clause of the
Armed Career Criminals Act was unconstitutionally
vague. If a sentencing court imposed an increased
sentence based on felonies that qualified under the residual
clause alone, that sentence violated a criminal
defendant's constitutional right to due
criminal defendant sentenced under the ACCA residual clause
can collaterally challenge his ACCA affected sentence in a
§ 2255 habeas proceeding.
Guidelines' career offender provision defines
“crime of violence” using the same language ruled
unconstitutional in Johnson. Therefore, since
Johnson, many criminal defendants sentenced under
the Guidelines' career offender provision have argued
that Johnson's holding should also apply
retroactively to Guidelines cases.
Beckles, the Supreme Court rejected this argument.
In Beckles, the petitioner argued that because the
Court's Johnson opinion held “that the
identically worded residual clause in the Armed Career
Criminal Act . . . was unconstitutionally vague . . . the
Guidelines' residual clause is also void for
answering this argument, the Beckles Court held that
because of the Guidelines' advisory nature, they
“are not subject to vagueness challenges under the Due
Supreme Court's decision dictates the outcome of
Beckles-dependant cases pending across the federal
courts. Berry's sentence is constitutional.
Berry raises actual innocence and ineffective assistance of
counsel claims. Berry says his predicate offenses do not
qualify him as a felon because they carry sentences of less
than a year. Berry reasons that this Court never
should have sentenced him as a felon in possession of a
firearm and his attorney gave ineffective assistance by
failing to argue this point.
is a felon. Under 18 U.S.C. § 922(g)(1), a defendant may
be prosecuted as a felon in possession of a firearm if he
“has been convicted in any court of a crime punishable
by imprisonment for a term exceeding one year.” Berry
was convicted of fourth degree assault on a police officer,
a crime punishable by imprisonment for up to eighteen
months. Defendant's actual innocence claim
did not receive ineffective assistance of counsel.
“Omitting meritless arguments is neither professionally
unreasonable nor prejudicial.” Defense counsel had ...