United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge
matter is before the court on the defendant's motion to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255, Filing No. 42, and on counsel's motion to
withdraw, Filing No. 47. The defendant seeks relief under
Johnson v. United States, 135 S.Ct. 2551
(2015). Counsel was appointed to represent the defendant
under the court's general order. See General
Order No. 2016-07, In Re Petitions Arising Under Johnson
v. United States, 135 S.Ct. 2551 (2015).
Johnson, the Supreme Court invalidated the residual clause of
the Armed Career Criminal Act of 1984 ("ACCA"), 18
U.S.C. § 924(e)(2)(B)(ii), which defined "violent
felony" as a crime that "involves conduct that
presents a serious potential risk of physical injury to
another" as unconstitutionally vague in violation of due
process of law. Id. at 2557. The ACCA sets a
statutory minimum sentence for a felon with three or more
prior convictions for a violent felony. 18 U.S.C. §
924(e). The Supreme Court has also found Johnson is
retroactive in cases on collateral review. Welch v.
United States, 136 S.Ct. 1257, 1268 (2016).
court has reviewed the record and finds Johnson has no
application to this case. The record shows that the defendant
was sentenced, pursuant to a plea agreement, to a prison term
of 70 months for conspiracy to distribute methamphetamine in
violation of 21 U.S.C. § 846. Filing No. 37, Judgment.
His sentence was not enhanced under the ACCA, nor did he
receive a career offender enhancement under the United States
Sentencing Guidelines, U.S.S.G. § 4B1.1. See Filing No.
35, Presentence Investigation Report (sealed)
("PSR") at 10-12. His sentence was based on a plea
agreement and drug quantity. Id. at 6.
sentence was not based on the residual clause of the ACCA. No
definitions of "crimes of violence" were implicated
and no prior conviction was used to enhance the
defendant's sentence. Therefore, the Johnson decision is
inapplicable, here, and the defendant's claim fails. The
court finds it plainly appears from the face of the motion
and the record that the defendant is not entitled to relief,
and his motion is subject to dismissal under Rule 4(b) of the
Rules Governing Section 2255 Proceedings.
has shown that there are no non-frivolous claims for relief
under Johnson and the court finds counsel should be allowed
to withdraw. Further, there appears to be no need for a
hearing and the hearing previously scheduled herein will be
defendant must make a substantial showing of the denial of a
constitutional right in order to be granted a certificate of
appealability in this case. See Miller-El v.
Cockrell, 537 U.S. 322 (2003). "A substantial
showing is a showing that issues are debatable among
reasonable jurists, a court could resolve the issues
differently, or the issues deserve further proceedings."
Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997).
Moreover, " ‘[w]here a district court has rejected
the constitutional claims on the merits, the showing required
to satisfy § 2253(c) is straightforward: The petitioner
must demonstrate that reasonable jurists would find the
district court's assessment of the constitutional claims
debatable or wrong.' " Miller-El, 537 U.S.
at 338 (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)). The court finds the defendant's motion does not
present questions of substance for appellate review and,
therefore, does not make the requisite showing to satisfy
§ 2253(c). See 28 U.S.C. § 2253(c)(2); Fed. R. App.
P. 22(b). Accordingly, no certificate of appealability
pursuant to 28 U.S.C. § 2253(c) will issue. Should the
defendant wish to seek further review of his petition, he may
request a certificate of appealability from a judge of the
United States Court of Appeals for the Eighth Circuit.
See Tiedman v. Benson, 122 F.3d 518, 520-22 (8th
IT IS HEREBY ORDERED that:
defendant's motion to vacate, set aside, or correct his
sentence (Filing No. 42) is denied.
Counsel's motion to withdraw (Filing No. 47) is granted.
hearing scheduled for November 14, 2016 at 11:00 AM in
Courtroom No. 3, Roman L. Hruska U.S. Courthouse, 111 South
18th Plaza, Omaha, NE before Senior Judge Joseph F. Bataillon
certificate of appealability pursuant to 28 U.S.C. §
2253(c) will issue.
action is dismissed.
Judgment in conformity with the Memorandum and Order ...