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. 45, motion to appoint counsel, Filing
No. 46, and on counsel's motion to withdraw, Filing No.
50. 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
and the motion for appointment of counsel is accordingly
moot. 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 to a mandatory minimum term of 60
months imprisonment on Count I, a drug conspiracy count, and
to a 24-month concurrent sentence on Count II, which was a
charge of unlawfully entering the United States. Filing No.
42, 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. 38, Presentence Investigation Report (sealed)
("PSR") at 8-9. His sentence was based on a plea
agreement and drug quantity. Id. at 5, 7-8.
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 Cir. 1997).
IT IS HEREBY ORDERED that:
Defendant's motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255 (Filing No. 45) is
Defendant's motion to appoint counsel (Filing No. 46) is
denied as moot.
Counsel's motion to withdraw (Filing No. 50) is granted.
hearing scheduled for November 14, 2016 at 11:30 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. ...