United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE
matter is before the court on defendant Carl Harris's
Motion to Vacate his sentence under 28 U.S.C. § 2255.
Harris, who pled guilty in 2004 to distribution of crack
cocaine, was sentenced to 235 months imprisonment. (Dkt. 24).
Invoking the Supreme Court's determination in Johnson
v. United States, 135 S.Ct. 2551 (2015) that the
residual clause contained in the Armed Career Criminal Act
was unconstitutionally vague, Harris argues that his sentence
was improperly enhanced as a career offender under the
residual clause of the Sentencing Guidelines, §
4B.1.2(a) on the basis of two prior convictions for armed
Supreme Court subsequently determined in Beckles v.
United States, 137 S.Ct. 886, 890 (2017), that
“the Guidelines are not subject to a vagueness
challenge under the Due Process Clause, ” and held that
§ 4B1.2(a)(2) was not void for vagueness. Harris
suggests that Beckles is not controlling, because
his sentence was imposed prior to United States v.
Booker, 543 U.S. 220 (2005), at a time with the
Guidelines were considered mandatory rather than
government opposes the defendant's motion, arguing (1)
that the defendant's claim is time-barred because it is
presented more than a year after his sentence became final
and the saving provision of 28 U.S.C. § 2255(f)(3) is
inapplicable; (2) any challenge to the Guidelines-based
sentence under Johnson would be procedural in nature
and thus not retroactive; (3) that § 4B1.2(a)(2) is not
vague; (4) that defendant is procedurally defaulted from
raising the argument in light of his guilty plea; and (5)
that the underlying robberies are crimes of violence under
the Guidelines. The court finds that the statue of
limitations bars defendant's claim.
Tenth Circuit has determined that “[w]hether
Johnson applies to pre-Booker guideline
sentences is an open question.” See United States
v. Hopson, 2017 WL 6523336, *2 (10th Cir. Dec. 21, 2017)
(citing United States v. Miller, 868 F.3d 1182,
1186-87 (10th Cir. 2017)). In Miller, the Tenth
Circuit noted the government's § 2255(f)(3) statute
of limitations defense, but did not address the issue after
finding that the government had forfeited the argument under
the facts of the case. The government has preserved and
presented the defense in the present action.
the Supreme Court has not created any new right under
Johnson authorizing vagueness challenges to
guidelines sentences imposed before, petitioner's
challenge is time-barred. In the absence of such a decision,
the claimant cannot invoke the saving provision of §
2255(f)(3). This conclusion reflects the uniform conclusion
of this court,  as well as the overwhelming weight of
authority elsewhere. “[U]nless and until the Supreme
Court decides this issue, petitioner cannot bring a challenge
to his mandatory guidelines sentence.” Hernandez v.
United States, 2017 WL 6520500, *5 (W.D. Wisc. Dec. 20
recent ruling of the Tenth Circuit, United States v.
Greer, ___ F.3d ___, 2018 WL 721675 (10th Cir. Feb. 6,
2018), confirms this conclusion. Under the Antiterrorism and
Effective Death Penalty Act (AEDPA), a § 2255 motion
must be brought within one year of the later of “the
date on which the judgment of conviction becomes final”
or “the right asserted [by petitioner] 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)(1), (3). Greer, 2018 WL 721675 at *2.
The argument of the defendant would “require this court
to address the constitutionality of the residual clause of
the mandatory Guidelines in the first instance on collateral
review … a task [which] exceeds the authority of this
court under AEDPA.” Greer, 2018 WL 721675 at
the matter is time-barred, the court need not address the
additional arguments presented by the government, including
the ultimate merits of whether the relevant sentencing
guidelines are indeed vague when applied to the
defendant's prior Oklahoma convictions for robbery with a
of the Rules Governing Section 2255 Proceedings requires the
court to “issue or deny a certificate of appealability
[COA] when it enters a final order adverse” to the
petitioner. Under 28 U.S.C. § 2253(c)(2), a court may
grant a COA upon “a substantial showing of the denial
of a constitutional right.” Where, as here, the court
denies a habeas claim on procedural grounds, the court may
issue a COA if “jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Because defendant
fails to satisfy the applicable standards in this case, the
court denies a certificate of appealability.
court also denies defendant's Motion for Reconsideration
as to appointment of counsel. In 2009, the court denied
appointment of counsel in the context of defendant's
motion for relief under 18 U.S.C. § 3582(c)(2). The
court finds that defendant has ably and thoroughly presented
the arguments relevant to the issues involved, and finds no
grounds for appointment of counsel.
ACCORDINGLY ORDERED this 30th day of March, 2018, that
defendant's Motions to Vacate (Dkt. 58) and for
Reconsideration (Dkt. 64) are hereby denied.
United States v. Pullen, No.
98-40080-01-JAR, 2017 WL 3674979, *2 (D. Kan. Aug. 23, 2017);
United States v. Ward, 01-CR-40050-01-DDC, 2017 WL
3334644, at *2 (D. Kan. Aug. 4, 2017); United States v.
Brigman, No. 03-20090-JWL, 2017 ...