United States District Court, S.D. Ohio, Western Division, Dayton
Herbert Rice District Judge
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge
proceeding under 28 U.S.C. § 2255 is before the Court on
Defendant's Objections (ECF No. 122) to the Magistrate
Judge's Report and Recommendations concluding the Motion
to Vacate should be dismissed with prejudice (ECF No. 120).
District Judge Rice has recommitted the case for
reconsideration in light of the Objections (ECF No. 123).
Report concluded that the Supreme Court's decision in
Beckles v. United States, 137 S.Ct. 886, 197 L.Ed.2d
145 (2017), was “fatal to Mr. Moore's claim”
because the Court decided that “the [Sentencing]
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.” See
Beckles, supra, at *152.
outset it is important to note that Mr. Moore was not
sentenced under the Armed Career Criminal Act (ACCA). Counsel
makes frequent references in the Objections to the ACCA,
indeed asking that the matter be remanded “to the
Magistrate Judge for a determination of whether the
Defendant's prior convictions qualify under the
‘elements' clause of the ACCA.” (Objections,
ECF No. 122, PageID 632.) The Information which is the
critical charging document in the case does not charge a
violation of the ACCA. The elements clause of the ACCA was
not and is not relevant to this case.
Mr. Moore was sentenced as a career offender under the
Sentencing Guidelines. The Presentence Investigation Report
(“PSR”) concluded “defendant is a career
offender as he has two prior felony convictions for crimes of
violence and the instant offenses are crimes of
violence.” PSR at ¶ 41. Mr. Moore's only
objection was that the “two prior felony convictions
should be considered as ‘related cases' for
purposes of criminal history computation.”
(Defendant's Objection to PSR, ECF No. 35, PageID 131.)
The Sixth Circuit resolved that claim against Mr. Moore.
United States v. Moore, Case No. 06-3215, 247
Fed.Appx. 787 (6th Cir. Sept. 18, 2007)(copy at
ECF No. 100).
the only objection to the use of the two prior convictions
that Mr. Moore ever made in this Court or the Sixth Circuit
and that objection was resolved against Mr. Moore almost ten
years ago. Because the objection that the prior convictions
did not satisfy other requirements of the Sentencing
Guidelines, to wit, that they did not contain an element of
force so as to satisfy the elements clause of the Guidelines,
was available to Mr. Moore on direct appeal and not raised,
it is barred from merits consideration now by his procedural
default in failing to raise it on direct appeal. United
States v. Frady, 456 U.S. 152 (1982); Kaufman v.
United States, 394 U.S. 217 (1969); Ratliff v.
United States, 999 F.2d 1023 (6th Cir. 1993).
the objection could have been properly raised for the first
time in a § 2255 proceeding, Mr. Moore's filing was
untimely. 28 U.S.C. § 2255, as amended by the AEDPA,
places a one-year statute of limitations on § 2255
motions to vacate. Mr. Moore's conviction became final on
direct appeal when he failed to file a petition for writ of
certiorari in the United States Supreme Court after his
conviction and sentence were affirmed on appeal. The time for
doing so expired ninety days after the Sixth Circuit's
decision or December 17, 2007. Mr. Moore did not file his
§ 2255 Motion to Vacate until January 11, 2016 (ECF No.
Moore had in fact been sentenced under the ACCA and the Court
had relied on the residual clause of that statute to find him
to be an armed career criminal, the statute of limitations
would not create a bar because in Johnson v. United
States, 135 S.Ct. 2551 (2015), the Supreme Court held
the residual clause of the ACCA to be unconstitutional and
then in Welch v. United States, 576 U.S.__, 136
S.Ct. 1257 (April 18, 2016), held Johnson created a
new substantive right and was therefore applicable to cases
on collateral review. Although the Sixth Circuit had extended
the logic of Johnson to Guidelines cases, United
States v. Pawlak, 822 F.3d 902 (6thCir.
2016), Pawlak was abrogated by the decision in
says Mr. Moore, Beckles is irrelevant because he is
not raising a claim under the residual clause of either the
ACCA or the Guidelines, but a claim that his prior
convictions for deviant criminal conduct and battery do not
satisfy the elements clause of the Guidelines. That position
does not avoid either the procedural default bar or the
statute of limitations. Those arguments were fully available
to Mr. Moore when he was sentenced, but they were not raised.
Objections, Mr. Moore claims he argued in his Amended Motion
to Vacate that his “battery and criminal deviate
conduct convictions were required to be analyzed under the
‘modified categorical approach' outline in
Descamps v. United States, 133 S.Ct. 2276
(2013).” (ECF No. 122, PageID 631.) This argument is
unpersuasive. First, contrary to counsel's statement, one
searches the Amended Motion to Vacate (ECF No. 116) in vain
for any citation to Descamps. Second,
Descamps was decided in 2013, but Mr. Moore's
Motion to Vacate was not filed until 2016. Third, even if Mr.
Moore had filed within a year of the Descamps decision, that
decision has never been held to apply retroactively.
Zemba v. Farley, 2015 U.S. App. LEXIS 12430
(6th Cir. 2015); In re Black, 2014 U.S.
App. LEXIS 15452 (6th Cir. 2014); Headbird v.
United States, 813 F.3d 1092 (8th Cir. 2016).
on the foregoing analysis, it is again respectfully
recommended that Mr. Moore's Amended Motion to Vacate be
DISMISSED WITH PREJUDICE. Because reasonable jurists would
not disagree with this conclusion, Petitioner should be
denied a certificate of appealability and the Court should
certify to the Sixth Circuit that any appeal would be
objectively frivolous and therefore should not be permitted
to proceed in forma pauperis.