United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA, United States District Judge
case is before the court on defendant Henry Johnson's pro
se motion to vacate sentence pursuant to 28 U.S.C. §
2255, and alternatively motion to vacate pursuant to §
2241, and § 1651 based on Johnson v. United
States, 135 S.Ct. 2551 (2015) (Doc. 108.) Defendant
claims that the sentence enhancement based on his career
offender status under U.S.S.G. § 4B1.1, is
unconstitutional in light of Johnson. For the
reasons set forth below, this court dismisses defendant's
August 2000, defendant pleaded guilty to unlawful obstruction
of commerce by robbery and aiding and abetting, in violation
of 18 U.S.C. §§ 2, 1951; and using and carrying a
firearm during and in relation to a crime of violence and
aiding and abetting, in violation of 18 U.S.C. §§
2, 924(c). In calculating defendant's sentencing range
under the then-mandatory guidelines, the Presentence
Investigation Report determined that defendant was a career
offender under U.S.S.G. § 4B1.1 because he had two
qualifying crimes of violence. District Judge G. Thomas
VanBebber sentenced defendant on January 16, 2001, to a
controlling term of 211 months imprisonment.
appealed his sentence, and an appeal mandate was issued on
October 3, 2001, affirming the decision of the district
court. Defendant filed a petition for writ of certiorari with
the Supreme Court, which was denied on February 16, 2002.
filed his current § 2255 motion on January 25, 2016.
Defendant seeks collateral review well past one year after
his conviction became final. He also filed a prior §
2255 motion. He relies on the United States Supreme
Court's decision in Johnson that held the
residual clause of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii),
unconstitutionally vague. See Johnson, 135 S.Ct. at
2563. Defendant argues that the residual clause in U.S.S.G.
§ 4B1.1 has similar language as the offending residual
clause of the ACCA.
28 U.S.C. § 2255, federal prisoners seeking to file a
second or successive motion must first obtain authorization
from the court of appeals before the district court can
consider the motion. In re Cline, 531 F.3d 1249,
1250 (10th Cir. 2008). To obtain authorization, the defendant
must demonstrate that the motion is based on a new
constitutional rule or on newly discovered evidence.
United States v. Lara-Jiminez, 377 F. App'x 820,
822 (10th Cir. 2010); 28 U.S.C. § 2255(h). When a second
unauthorized § 2255 motion is filed, the court has
discretion to determine whether to transfer the action to the
circuit court or dismiss the action without prejudice.
See In re Cline, 531 F.3d at 1251; see also
28 U.S.C. § 1631.
Tenth Circuit has provided guidance on determining when a
transfer would be in the interest of justice. In re
Cline, 531 F.3d at 1251. “A transfer is not in the
interest of justice when the claims raised in the successive
petition clearly do not meet the requirements set forth in 28
U.S.C. § 2255(h).” Lara-Jiminez, 377 F.
App'x at 822 (citing In re Cline, 531 F.3d at
1252). Section 2255(h) identifies two situations in which a
second or successive motion is certifiable: (1) certain newly
discovered evidence exists; or (2) certain new rules of
constitutional law have been announced.
court finds that it is without jurisdiction to consider
defendant's second § 2255 motion. See 28
U.S.C. § 2255(h) (federal courts do not have
jurisdiction to consider successive § 2255 motions
unless they are certified “by a panel of the
appropriate court of appeals”). The court further
finds that a transfer is not warranted because the two
aforementioned situations are not present. Recently, the
Supreme Court held in Beckles v. United States, 137
S.Ct. 886, 890 (2017), that the residual clause under
U.S.S.G. § 4B1. 2(a)(2)-“defining a ‘crime
of violence' as an offense that ‘involves conduct
that presents a serious potential risk of physical injury to
another'”-was not unconstitutional. Id.
(holding that the advisory sentencing guidelines are not
subject to vagueness challenges under the due process
clause). Beckles abrogated the Tenth Circuit's
decision in United States v. Madrid, 805 F.3d 1204,
1210 (10th Cir. 2015). Beckles, 137 S.Ct. at 886.
court therefore finds that it is not in the interest of
justice to transfer this claim to the Tenth Circuit. The
court dismisses defendant's motion without prejudice.
certificate of appealability is not warranted in this case
because reasonable jurists could not debate whether
“the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (internal citation
THEREFORE ORDERED that defendant Henry Johnson's pro se
motion to vacate sentence pursuant to 28 U.S.C. § 2255,
and alternatively motion to vacate pursuant to § 2241,
and § 1651 based on Johnson (Doc. 108) is
FURTHER ORDERED that the court will not issue a certificate