United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
C. NUGENT, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Mr. King's Motion for
Reconsideration of Memorandum Opinion And Order Under
Fed.R.Civ.P. 59(E). (ECF #67). Mr. King has argued that he is
entitled to reconsideration because the Court based its
decision on the Supreme Court's holding in Beckles v.
United States, __ U.S. __, 197 L.Ed.2d 145 (2017), and
he argues that Beckles does not apply to defendants
who were sentenced under the mandatory Sentencing Guidelines
in place prior to United States v. Booker, 543 U.S. 220
26, 2015, the United States Supreme Court decided Johnson
v. United States, 135 S.Ct. 2551, 1192 L.Ed.2d 569
(2015), which found that the identically defined residual
clause in the Armed Career Criminal Act of 1984
(“ACCA”), 18 U.S.C. §924(e)(2)(B) was
unconstitutionally vague. In a follow-up case, Welch v.
United States, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387
(2016), the Supreme Court determined that the rule announced
in Johnson was substantive and should be applied
retroactively. Subsequently, in the case of Beckles v.
United States, - U.S. - (March 6, 2017), the
United States Supreme Court took on the issue of whether the
Johnson rule and reasoning invalidating the residual
clause under the ACCA also applies to invalidate the residual
clause under the Guidelines. Beckles held that
Johnson does not, in fact, apply to invalidate
sentences enhanced under the residual clause of the
“advisory Guidelines.” The Court in
Beckles found that
[u]nlike the ACCA . . . the advisory Guidelines do not fix
the permissible range of sentences. To the contrary, they
merely guide the exercise of a court's discretion in
choosing an appropriate sentence within the statutory range.
Accordingly, the 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.
Beckles , at pg. 5.
Thomas, writing for the majority, and Justice Sotomayor, in
her concurring opinion, both clarified that Court's
opinion in Beckles specifically addressed only the
“advisory Guidelines” and did not decide whether
Johnson applied to the mandatory guidelines used in
parties appear to agree that Mr. King was originally
sentenced in 2004, under the pre-Booker mandatory
guidelines; that he did not appeal his conviction or
sentence; and, that the United States Supreme Court has not
determined whether the residual clause of the career-offender
designation in the pre-Booker guidelines is subject
to invalidation under the reasoning set forth in
Johnson. There is also no dispute that his Motion to
Vacate under 28 U.S.C. §2255, (ECF #58), was not filed
until June 20, 2016.
to 28 U.S.C. §2255(f)(1), a §2255 motion must be
filed within one year “of the date on which the
judgment of conviction becomes final.” Because he did
not file an appeal of his conviction or sentence, Mr.
King's judgment became final after his time for noticing
an appeal expired. This would have been on June 8, 2004.
Section 2255 also provides, however, that a petition may also
be filed within one year of “the date on which the
right asserted was initially recognized by the Supreme Court,
if that right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral
review.” 28 U.S.C. § 2255(f)(3).
Johnson case held that the specific language used in
the residual clause of the ACCA was unconstitutionally vague.
In Welch v. United States, the Supreme Court found
that Johnson announced a new substantive rule that
has retroactive effect in cases on collateral review. 136
S.Ct. 1257, 1265 (2016). Therefore, a claim to enforce the
right to re-sentencing based on the invalidated language in
the ACCA is timely if filed within a year of that decision.
United States Supreme Court has not definitively answered the
question of whether the same language invalidated in
Johnson is also unconstitutional as used within the
pre-Booker Sentencing Guidelines. Therefore, the
government argues that the potential invalidation of
pre-Booker sentencing language is not a
“right” that “has been newly recognized by
the Supreme Court, ” or that was “made
retroactively applicable to cases on collateral review”
as would be required to re-set the one year deadline for
filing a petition under 28 U.S.C. §2255. Therefore, they
argue that Mr. King's petition was untimely.
Sixth Circuit appears to agree with the government's
position on the timeliness of Mr. King's petition,
despite having previously entertained similar challenges to
the post-Booker sentencing guideline challenges,
which would also have been untimely under this approach. In
the Sixth Circuit case of Raybon v. United States of
America, Case No. 16-2522, recently decided on August
14, 2017, the court held that a challenge to the
Johnson language, as applied to the
pre-Booker Sentencing Guidelines, was untimely under
28 U.S.C. §2255(f)(3). The Raybon court relied
on the same reasoning put forth by the government in its
opposition to Mr. King's petition: because the question
of whether Johnson “applies to the mandatory
guidelines, which contain identical language as the ACAA
provision at issue in Johnson 2015, is an open
question” . . . “it is not a
‘right' that ‘has been newly recognized by
the Supreme Court' let alone one that was ‘made
retroactively applicable to cases on collateral
review.'” Raybon, at pg. 5. This Court is
bound by the holdings of the Sixth Circuit, and must,
therefore, find that Mr. King's petition is also untimely
under 28 U.S.C. §2255(f)(3).
government also argues that Mr. King's petition fails on
the merits. Mr. King's past convictions would qualify as
crimes of violence even without application of the contested
residual clause language in the sentencing guidelines. The
Sixth Circuit has unequivocally held that the the Post-Senate
Bill version of Ohio Rev. Code §2911.01(A)(1)
(Aggravated Robbery) qualifies as a crime of violence under
the “elements” test of the Sentencing Guidelines
§4B1.2(a). United States v. Patterson, F.3d,
2017 WL 1208425 (6th Cir., April 3, 2017). Mr.
King had at least three separate qualifying convictions under
this section of the Ohio Rev. Code. Accordingly, whether or
not Johnson applies to the pre-Booker
Sentencing Guidelines, Mr. King was properly determined to be
a Career Offender based on his prior convictions under the
elements portion of the Sentencing Guidelines. Mr. King has
not countered this argument and, therefore, appears to have
conceded this point.
reasons set forth above, Mr. King's motion for
reconsideration is, ...