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United States v. Ward

United States District Court, D. Kansas

August 3, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN D. WARD, Defendant.

          MEMORANDUM AND ORDER VACATING DOC. 150 AND DENYING PETITIONER'S MOTION UNDER § 2255

          Daniel D. Crabtree United States District Judge

         Mr. Ward argued in a § 2255 motion that the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), invalidated the Guideline provision used to impose his sentence. Johnson held that the residual clause of the Armed Career Criminal Act (“ACCA”) is unconstitutionally vague and thus violated the notice provision of the Due Process Clause. Id. at 2257. Mr. Ward's § 2255 motion sought to apply that ruling to the identically-worded residual clause of U.S.S.G. § 4B1.2-the Guideline that the court used to impose his sentence. Following precedent from the Fourth and Sixth Circuits and the majority of district court cases in our Circuit, the court held that Johnson applies retroactively to the Guidelines, and thus invalidated sentences imposed under U.S.S.G. § 4B1.2. Doc. 150 at 6-7. The court thus granted Mr. Ward's § 2255 motion in its February 27, 2017 Memorandum and Order (Doc. 150), and ordered resentencing on March 6, 2017 (id. at 12).

         But, after the court granted Mr. Ward's § 2255 motion, the Supreme Court held in Beckles v. United States that the advisory Guidelines, including U.S.S.G. § 4B1.2(a)'s residual clause, are not subject to a vagueness challenge under the Due Process Clause. 137 S.Ct. 886, 892 (2017). The Court explained that the advisory Guidelines “do not fix the permissible range of sentences” but “merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range.” Id. So, the court concluded “that the advisory Sentencing Guidelines are not subject to a vagueness challenge under the Due Process Clause and that § 4B1.2(a)'s residual clause is not void for vagueness.” Id. at 895.

         Beckles differs from this case because, unlike Mr. Ward, the defendant in Beckles was sentenced under the advisory Guidelines. Mr. Ward, on the other hand, was sentenced before the Supreme Court decided United States v. Booker, making the Guidelines “effectively advisory.” 543 U.S. 220, 245 (2005). So, when the court sentenced Mr. Ward, the Guidelines' range was mandatory, not advisory. And, Justice Sotomayor, in a concurring opinion in Beckles, recognized that the “distinction between mandatory and advisory rules at least leaves open the question whether defendants sentenced to terms of imprisonment before our decision in United States v. Booker . . . may mount vagueness attacks on their sentences.” Beckles, 137 S.Ct. at 903 n.4 (Sotomayor, J., concurring).

         Following the Supreme Court's ruling, the court ordered the parties in this case to confer whether Beckles requires the court to vacate its Memorandum and Order granting Mr. Ward's Motion under § 2255. Doc. 160. The court ordered the parties to file submissions explaining their respective positions on the effect of the Supreme Court's ruling on Mr. Ward's § 2255 motion. Id. The court also vacated the resentencing hearing set for March 30, 2017. Doc. 164. Mr. Ward has submitted supplemental briefing on the issue. Doc. 169. The government has responded. Doc. 172. And, Mr. Ward has submitted a Reply. Doc. 175.

         After considering the parties' submissions, the court concludes that Mr. Ward's motion is untimely under § 2255(f)(3). The court thus vacates its Memorandum and Order granting Mr. Ward's § 2255 motion. Doc. 150. And, the court denies his request for § 2255 relief. Doc. 137.

         A one-year statute of limitations applies to petitions filed under 28 U.S.C. § 2255. The limitations period runs from the latest of:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making such a motion by governmental action;
(3) 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; or
(4) the date on which facts supporting the claim or claims presented could have been discovered through the exercise of reasonable diligence.

28 U.S.C. § 2255(f). Neither subsection (2) nor (4) apply here, and Mr. Ward's conviction became final almost 14 years ago. So, Mr. Ward's § 2255 motion is untimely unless subsection (3) applies to it. Mr. Ward asserts that his motion relies on the new right recognized in Johnson holding that the ACCA's residual clause is unconstitutionally vague. Because Mr. Ward filed his motion within one year of the Supreme Court's decision in Johnson, he asserts his § 2255 motion is timely.

         The government disagrees. The government asserts that the rule announced in Johnson does not apply to Mr. Ward because the court never sentenced him under the ACCA's residual clause. Instead, the court sentenced Mr. Ward under U.S.S.G. § 4B1.2(a)'s residual clause. The government thus contends that the Supreme Court has not recognized the rule that Mr. Ward seeks to raise in his motion-that is, Johnson extends to the mandatory Guidelines, including U.S.S.G. § 4B1.2(a)'s residual clause, making them subject to vagueness challenges under the Due Process Clause. The government asserts that the problem for Mr. Ward is not that he is too late in filing his § 2255 motion, but that his motion is premature.[1]

         The Tenth Circuit has not decided whether a motion raising a Johnson-based challenge against the mandatory Guidelines' residual clause is properly raised under § 2255(f)(3). But, nearly every court that has answered this question-including three district courts in our Circuit-have dismissed such § 2255(f) motions as untimely. See, e.g., Zamora v. United States, No. CV 16-695-JCH-GBW, 2017 WL 3054645, at *6 (D.N.M. June 29, 2017) (recommending dismissal of a petitioner's § 2255 motion as untimely because “the Supreme Court has not yet recognized a right to a vagueness challenge of sentencing guideline provisions (in Johnson or otherwise)”); United States v. Torres, No. 16-645 LH/WPL, 2017 WL 3052974, at *3 (D.N.M. June 20, 2017) (recommending dismissal of a petitioner's § 2255 motion as untimely because “Johnson did not address whether sentences imposed under the residual clause of the career offender guideline before Booker can be challenged as void for vagueness, and Beckles left the issue open, ” so petitioner was not asserting a right recognized by the Supreme Court and made retroactively applicable to cases on collateral review as § 2255(f)(3) requires); Ellis v. United States, No. 2:16-CV-484-DAK, 2017 WL 2345562, at *3 (D. Utah May 30, 2017) (dismissing a § 2255 motion as untimely because “Johnson does not apply to [petitioner's] case” and “neither the Supreme Court nor the Tenth Circuit has directly recognized a right to modify a sentence increased under the residual clause of USSG § 4B1.2 before Booker . . . .”). See also Davis v. United States, No. 16-C-747, 2017 WL 3129791, at *6 (E.D. Wis. July 21, 2017) (denying a petitioner's § 2255 motion as untimely because “the Supreme Court has not held that the Guidelines' residual clause is unconstitutionally vague, and [petitioner] cannot assert that this right was ‘newly recognized' by the Court in Johnson.”); United States v. Beraldo, No. 3:03-cr-00511-AA, 2017 WL 2888565, at *2 (D. Or. July 5, 2017) (following the “growing consensus [of district court cases] and the Court's decision in Beckles” and concluding that “defendant cannot rely on 28 U.S.C. § 2255(f)(3) to make his petition timely” because he asserted “the right not to be subjected to a sentence enhanced by a vague mandatory sentencing guideline” and that right “has not been recognized by the Supreme Court”); Hirano v. United States, No. 16-00686-ACK-KJM, 2017 WL 2661629, *8 (D. Haw. June 20, 2017) (denying a petitioner's § 2255 motion as untimely because “while the Supreme Court may still decide that the Guidelines as they were applied prior to Booker are subject to a vagueness challenge based on the Court's analysis in Johnson, it has not done so yet” (citation and internal quotation marks omitted)); United States v. Autrey, __ F.Supp.3d __, 2017 WL 2646287, *4 (E.D. Va. June 19, 2017) (denying a § 2255 motion as untimely because “it is clear that Johnson did not establish a new ‘right' applicable to defendant or the mandatory Guidelines”); Mitchell v. United States, No. 3:00-CR-00014, 2017 WL 2275092, at *5 (W.D. Va. May 24, 2017) (“Because the Supreme Court has not decided whether the residual clause of the mandatory Sentencing Guidelines is unconstitutionally vague-and did not do so in Johnson II-Petitioner's motion is untimely under § 2255(f)(3)”); Cottman v. United States, No. 8:02-CR-397-T-24TBM, 2017 WL 1683661, at *1, 3 (M.D. Fla. May 3, 2017) (“Johnson's void for vagueness holding as to the ACCA's residual clause does not extend to the United States Sentencing Guidelines and the career offender ...


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