United States District Court, D. Kansas
MEMORANDUM & ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE.
matter comes before the court upon petitioner Sandtas
Metcalf's Motion to Vacate Sentence (Doc. 70) and the
Government's Motion to Dismiss (Doc. 77). The Tenth
Circuit granted petitioner leave to file a second or
successive motion to vacate his sentence, based on his
argument that he no longer qualifies as a career offender
under U.S.S.G. § 4B1.2. Petitioner argues that the
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015)-that the residual clause
of the Armed Career Criminals Act (“ACCA”) was
void for vagueness-should also subject to collateral review
sentences that were imposed under identical language in the
Guidelines, while the guidelines were mandatory.
pleaded guilty to possessing with intent to distribute five
grams or more of cocaine base in October 2006. On January 8,
2007, he was sentenced to 180 months imprisonment to be
followed by four years of supervised release. On July 22,
2010, petitioner filed a previous motion for collateral
relief under 28 U.S.C. § 2255, which was denied on
November 15, 2010. The Tenth Circuit affirmed. On May 20,
2016, petitioner received leave from the Tenth Circuit to
file a second or successive petition based on the Supreme
Court's decision in Johnson. Plaintiff's
second § 2255 challenges language in U.S.S.G. §
4B1.2 that is identical to the language the Supreme Court
found unconstitutionally vague in Johnson.
case has been stayed since July 8, 2016 pending the Tenth
Circuit's decisions in United States v. Greer,
881 F.3d 1241 (10th Cir. 2018), and United States v.
Mulay, No. 17-3031, 2018 WL 985741, at *1 (10th Cir.
Feb. 20, 2018), because those cases presented the question of
whether the Supreme Court's decision in Johnson
would extend to individuals sentenced under identical
language in the Guidelines, when the guidelines were
mandatory. Those cases have now been decided and the court is
ready to rule.
a § 2255 motion must be filed within one year of
“the date on which the judgment of conviction becomes
final.” § 2255(f)(1). But a new one-year period
begins on “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.” § 2255(f)(3). Here, petitioner timely
sought leave to file a second or successive motion under
§ 2255(h)(2), which provides that such leave may be
granted when there is “a new rule of constitutional
law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.”
new constitutional rules of criminal procedure do not
retroactively apply to cases on collateral review, but
substantives rules “are not subject to this general
retroactivity bar.” Mulay, at *4 (citing
Welch v. United States, 136 S.Ct. 1257 (2016),
Teague v. Lane, 489 U.S. 288 (1989)). Substantive
rules “alter the range of conduct or the class of
persons that the law punishes.” Id. (quoting
Welch, at 1264-65 (quoting Schriro v.
Summerlin, 542 U.S. 348, 353 (2004))). “A rule is
‘new' if it was not dictated by precedent
existing at the time the defendant's conviction became
final.” Id. (quoting Teague, at 301)
(emphasis in original). The Supreme Court's decision in
Johnson is “a new substantive rule because it
altered the sentence that a defendant could legally
receive.” Id. (citing Welch at 1265).
Habeas petitioners may therefore retroactively seek
application of the Supreme Court's decision in
Johnson to their cases.
noted in petitioner's latest status report, the Tenth
Circuit has determined that because Johnson does not
find the residual clause in § 4B1.2 void for vagueness,
habeas petitioners are not entitled to collateral review of
their sentences under that section, despite its language
being identical to that in the residual clause in the ACCA.
In Greer, the Tenth Circuit found that the language
of the Supreme Court's decision in Johnson
limited the holding to apply to “a defendant's
right not to have his sentence increased under the residual
clause of the ACCA.” Greer, 881 F.3d at 1248.
most recent status report (Doc. 98) concedes that the Tenth
Circuit's decisions in Greer and Mulay
found that the Supreme Court's decision in
Johnson is only applicable to habeas petitioners
seeking collateral review of their sentences under the ACCA.
Petitioner states that he disagrees with the Tenth
Circuit's decisions but concedes that this court is bound
by them. Petitioner does request that this court grant
petitioner a certificate of appealability. As petitioner
presents precisely the same question already decided by the
Tenth Circuit in Greer and Mulay,
petitioner's motion to vacate must be denied.
of the rules governing § 2255 provides that “[t]he
district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” Rule 11, 28 U.S.C. § 2255. Petitioner
must make a “substantial showing of the denial of a
constitutional right” in order for the district court
to issue a certificate of appealability. § 2253(c)(2). A
petitioner may meet this burden by “showing that
reasonable jurists could debate whether (or, for that matter
agree that) 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) (quoting
Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)).
A petitioner must show “something more than the absence
of frivolity or the existence of mere good faith on his or
her part.” Miller-El v. Cockrell, 537 U.S.
322, 338 (2003) (quoting Barefoot, 463 U.S. at 893).
The court must “indicate which specific issue or issues
satisfy the showing required . . .” § 2253(c)(3).
If the district court denies a certificate, the parties may
seek a certificate from the Tenth Circuit.
suggests that he should be granted a certificate of
appealability because the circuits are split on whether the
Supreme Court's decision in Johnson should apply
to identical language in § 4B1.2. The court agrees. As
petitioner notes, whether his petition will ultimately
prevail in this circuit is irrelevant to whether a
certificate should be granted. The petition is not frivolous
as there is a circuit split on the issue of whether the
Johnson decision should entitle individuals
sentenced under § 4B1.2, while the guidelines were
mandatory, to retroactive collateral review of their
sentences. The court grants petitioner's request for a
certificate of appealability.
IS THEREFORE ORDERED that petitioner's Motion to
Vacate Sentence (Doc. 70) is denied but his request for a