United States District Court, S.D. Ohio, Western Division
J. Dlott District Judge
REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge
case is before the Court on Defendant's Amended Motion to
Vacate pursuant to 28 U.S.C. § 2255 (ECF No. 43). On
Motion of the United States (ECF No. 50), the Magistrate
Judge held the case in abeyance pending decision by the
United States Supreme Court in Beckles v. United
States, Sup. Ct. Case No. 15-8544 (ECF No. 51). When
Beckles was decided, the Magistrate Judge vacated
the stay and recommended the Motion be dismissed with
prejudice (ECF No. 52).
reasons set forth in United States v. Tunstall, 2017
U.S. Dist. LEXIS 70635 (S.D. Ohio May 9, 2017), the
Magistrate Judge has become persuaded that the mandatory
Sentencing Guidelines as they applied in federal court before
United States v. Booker, 543 U.S. 220 (2005), are
unconstitutionally vague, per the reasoning of the Supreme
Court in Johnson v. United States, 576
U.S.__, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and of the
Sixth Circuit in United States v. Pawlak, 822 F.3d
902 (6th Cir. 2016).
on that conclusion, the Magistrate Judge withdrew the prior
Reports and Recommendations in this case and ordered the
United States to answer the Amended Motion (Order, ECF No.
65). The United States has done so (ECF No. 66) and Defendant
has filed a Reply (ECF No. 67). The Amended Motion is thus
ripe for decision on the merits.
Amended Motion states that he was convicted March 31, 2003,
of bank robbery in violation of 18 U.S.C. § 2113 and use
of a firearm in furtherance of a bank robbery in violation of
18 U.S.C. § 924. He was sentenced to 120 months
confinement on the bank robbery count and a consecutive 84
months on the firearms count (Minutes, ECF No. 34; Judgment,
ECF No. 35). Costello took no appeal and nothing else was
filed in the case until his Motion to Vacate was filed May
was sentenced as a career offender under the Sentencing
Guidelines which require two qualifying predicate
convictions. Costello claims that his prior convictions under
Ohio law for aggravated robbery do not qualify without the
residual clause in place (ECF No. 43, citing United
States v. Bilal, 610 Fed.Appx. 569 (6th Cir.
2015), and United States v. Patterson, 2015 U.S.
Dist. LEXIS 129256 (N.D. Ohio Sep 25, 2015)).
Presentence Investigation Report (“PSR”) shows
that Costello was convicted in the Warren County Common Pleas
Court on July 9, 1992, on one count of aggravated robbery
with a firearm specification (¶42). On October 12, 1992,
he was again convicted of aggravated robbery with a firearm
specification. Id. at ¶ 44. Judge Dlott
accepted the PSR and neither party had any objection to it
(Transcript, ECF No. 47, PageID 61, 63). The PSR recommended
a finding that Mr. Costello was a career offender because he
had “at least two prior felony convictions of either a
crime of violence or a controlled substance offense.”
PSR at ¶ 51. However, Judge Dlott mentioned only the
“crimes of violence” predicate offenses
(Transcript, ECF No. 47, PageID 64). Costello's counsel
mentioned that both aggravated robberies had occurred on the
same day, April 5, 1992, and suggested it was somewhat severe
to characterize a person as a career criminal on the basis of
a one-day crime spree. Id. at PageID 74. There was
no argument, however, that the two offenses did not count as
violent felonies. Judge Dlott departed from the recommended
offense level of 31 to an offense level of 22 on the basis of
Mr. Costello's substantial assistance. Id. at
Answer, the United States did not respond to the substance of
Defendant's claims, but relied on arguments that the
vagueness doctrine does not apply to the Sentencing
Guidelines and that any such application on collateral review
would be barred by Teague v. Lane, 489 U.S. 288
Costello replies that the Government has waived any
substantive arguments by not raising them in its Answer
(Reply, ECF No. 67, PageID 183-84, relying on Hunter v.
United States, 160 F.3d 1109 (6th
Cir. 1998)). In Hunter the defendant had entered
into a plea agreement which included an appeal waiver. When
he later sought and was denied relief under 28 U.S.C. §
2255, the Government was precluded from asserting the appeal
waiver for the first time on appeal. Judge Ryan wrote
[A]s with any other argument, the government can forfeit a
waiver argument by failing to raise it in a timely fashion.
See United States v. Canady, 126 F.3d 352, 359 (2d
Cir. 1997); Shukwit v. United States, 973 F.2d 903,
904 (11th Cir. 1992); cf. Doe v. United States, 51
F.3d 693, 697-99 (7th Cir. 1995).
160 F.3d at 1110. This is consistent with other habeas law.
For example, a defense of the bar of the statute of
limitations is waived if not raised in an answer. See Day
v. McDonough, 547 U.S. 198 (2006); Scott v.
Collins, 286 F.3d 923 (6th Cir. 2002).
Therefore this Court does not analyze the substance of
Defendant's arguments. The Magistrate Judge would note,
however, that United States v. Patterson,
supra, has been reversed in a published opinion by
the Sixth Circuit at 853 F.3d 298 (2017).
Magistrate Judge rejects both of the Government's
procedural defenses. For reasons explained in United
States v. Tunstall, supra, and a subsequent
opinion in the same case reported at 2017 U.S. Dist. LEXIS
92734 (S.D. Ohio June 16, 2017), the Magistrate Judge
concludes that the vagueness doctrine applies to the
mandatory pre-Booker Sentencing Guidelines because
they are sufficiently like a statute in the way they
constrain judicial discretion and that the residual clause of
the Guideline Career Offender requirement, which is textually
the same as the clause declared unconstitutionally vague in
Johnson, supra, is also unconstitutionally
vague. Because that is a substantive change in the law, made
retroactively applicable on collateral review by the Supreme
Court, Costello's challenge is not barred by
Teague, supra. See Welch v. United
States, 576 U.S.__, 136 S.Ct. 1257 (April 18, 2016);
In re: Windy Watkins, 810 F.3d 375 (6th
Cir. 2015). The holding of the Sixth Circuit in United
States v. Pawlak, 822 F.3d 902 (6th Cir.
2016), that ...