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. Prowell's Motion for
Reconsideration of Memorandum Opinion And Order Under
Fed.R.Civ.P. 59(E). (ECF #26). Mr. Prowell has argued that he
is entitled to reconsideration because the Court based its
decision denying relief on the Supreme Court's holding in
Beckles v. United States, __ U.S. __, 197 L.Ed.2d
145 (2017). 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 (2005).
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 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 agree that Mr. Prowell was originally sentenced in
December of 1999, under the pre-Booker mandatory
guidelines. He did not appeal his conviction or sentence, and
has filed no prior motion under §2255. The parties also
agree 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
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.
Prowell's judgment became final after his time for
noticing an appeal expired. This would have been on January
4, 2000. 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.
However, the United States Supreme Court has not definitively
answered the question of whether the same language
Johnson found unconstitutional withing the ACA is
also unconstitutional as it was used within the
pre-Booker Sentencing Guidelines.
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 held
that 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. Prowell's petition is also
untimely under 28 U.S.C. §2255(f)(3).
reasons set forth above, Mr. Prowell's motion for