United States District Court, D. Nebraska
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. 147, and on counsel's
motion to withdraw, Filing No. 151. 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);
Filing No. 148.
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. 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). Under Johnson, imposing an increased
sentence under the residual clause of the ACCA violates the
Constitution's guarantee of due process.
Johnson, 135 S.Ct. at 2563. 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 109 months for conspiracy to distribute
methamphetamine, cocaine and crack cocaine in violation of 21
U.S.C. § 846. Filing No. 124, 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. 120, Second Revised Presentence Investigation Report
(sealed) ("PSR") at 8-9. His sentence was based on
a plea agreement and drug quantity and was enhanced for
possession of a firearm. Id. at 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
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. Counsel
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
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).Accordingly, IT IS HEREBY ORDERED that:
defendant’s motion to vacate, set aside, or correct his
sentence (Filing No. 147) is denied.
Counsel's motion to withdraw (Filing No. 151) is granted.
hearing scheduled for November 21, 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. §
2253(c) will issue.
action is dismissed.
judgment in conformity with the Memorandum and Order ...