United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL United States District Judge
November 3, 2008, the Court sentenced defendant to 420 months
in prison. This matter is before the Court on defendant's
pro se Motion Under 28 U.S.C. § 2255 To Vacate, Set
Aside, Or Correct Sentence By A Person In Federal
Custody (Doc. #77) filed June 20, 2016. For reasons
stated below, the Court overrules defendant's motion and
denies a certificate of appealability.
September 14, 2006, a grand jury returned an indictment which
charged defendant with conspiracy to possess with intent to
distribute methamphetamine in violation of 21 U.S.C. §
846 (Count 1), possession with intent to distribute 50 grams
or more of methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)(viii) (Count 2),
brandishing and discharging a firearm in violation of 18
U.S.C. § 924(c) (Count 3) and being a felon in
possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2) (Count 4). See
Indictment (Doc. #1). On June 2, 2008, pursuant to a
plea agreement under Rule 11(c)(1)(C), Fed. R. Crim. P.,
defendant pled guilty to Counts 1, 2 and 4. See Plea
Agreement Pursuant To Fed. R. Crim. P. 11(c)(1)(C), attached
to Petition To Enter Plea Of Guilty And Order Entering
Plea (Doc. #46). The agreement proposed a sentence of
420 months in prison. See id., ¶ 3. Defendant
had a total offense level of 43 with a criminal history
category VI for a guideline range of life in prison.
See Presentence Investigation Report dated October
24, 2008, ¶ 74. On November 3, 2008, the Court accepted
the Rule 11(c)(1)(C) agreement and sentenced defendant to 420
months in prison. The Court sentenced defendant to 420 months
on Count 1, 420 months on Count 2 and 180 months on Count 4,
with the terms to be served concurrently. John M. Duma
initially represented defendant. More than one year before
the change of plea, Duma withdrew. See Order (Doc.
#25) filed April 2, 2007. Cheryl A. Pilate represented
defendant throughout the remaining proceedings.
20, 2016, defendant filed a pro se motion to vacate his
sentence under 28 U.S.C. § 2255. Defendant asserts that
(1) Pilate provided ineffective assistance because she failed
to advise defendant that Section 3A1.2(c)(1) of the United
States Sentencing Guidelines is constitutionally invalid; (2)
Pilate provided ineffective assistance because she advised
defendant to plead guilty to possession of a firearm which
was found on private property and (3) under Johnson v.
United States, 135 S.Ct. 2551 (2015), his prior offense
for aggravated battery no longer qualifies as a crime of
violence under Section 4B1.2 of the Guidelines.
standard of review of Section 2255 petitions is quite
stringent. The Court presumes that the proceedings which led
to defendant's conviction were correct. See Klein v.
United States, 880 F.2d 250, 253 (10th Cir. 1989).
Timeliness Of Claims 1 And 2
government asserts that because defendant's first two
claims are not based on Johnson, they are barred as
untimely. See Government's Response To
Defendant's Motion To Vacate Sentence (Doc. #81)
filed July 28, 2016 at 4-5. Section 2255 provides a one-year
period of limitation which ordinarily runs from the date on
which the judgment of conviction becomes final. If defendant
does not directly appeal his conviction or sentence, the
conviction becomes final upon the expiration of the time to
take a direct criminal appeal. United States v.
Prows, 448 F.3d 1223, 1227-28 (10th Cir. 2006). Here,
the Clerk entered judgment on November 3, 2008. Under Rule
4(b) of the Federal Rules of Appellate Procedure,
defendant's judgment became final 14 days later on
November 17, 2008. Therefore defendant had until November 17,
2009 to file a motion to vacate under Section 2255.
Section 2255(f)(3), the Court can consider a claim which is
filed after the one-year deadline, but 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). Because Johnson does not apply to
defendant's first two claims and defendant has not
alleged other grounds to toll the one-year deadline, the
Court overrules as untimely his claims of ineffective
Relief Under Johnson v. United States (Claim
argues that he is entitled to relief under Johnson.
In Johnson, the Supreme Court held that the residual
clause portion of the “violent felony” definition
under the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e)(2)(B)(ii), is unconstitutional under the
void-for-vagueness doctrine. 135 S.Ct.. at 2557-60, 2563;
see Welch v. United States, 136 S.Ct. 1257, 1260-61
government asserts that the waiver of collateral challenges
in the plea agreement bars defendant's claim under
Johnson. The Court need not address the
government's procedural argument because (1) the Rule
11(c)(1)(C) plea agreement, not the Guidelines, controlled
defendant's sentence and (2) even if the Court had not
classified defendant as a career offender under the
Guidelines, his guideline range remained life in prison. In
addition, on March 6, 2017, after the government filed its
opposition brief, the Supreme Court of the United States held
that “the Guidelines are not subject to a vagueness
challenge under the Due Process Clause” and the
“residual clause in ...