United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge.
matter is before the Court on initial review of the pro se
motion to vacate under 28 U.S.C. § 2255 (filing 77)
filed by the defendant, Cameron Mitchell, and the amended
motion (filing 81) filed through appointed counsel.
The defendant's initial motion (filing 77) was
timely filed less than 1 year after the Supreme Court
initially recognized the right that the defendant's
motion asserts. See, § 2255(f); Johnson v.
United States, 135 S.Ct. 2551 (2015).
Court's initial review is governed by Rule 4(b) of the
Rules Governing Section 2255 Proceedings for the United
States District Courts, which provides:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
§ 2255 movant is entitled to an evidentiary hearing
unless the motion and the files and records of the case
conclusively show that the movant is entitled to no relief.
§ 2255(b); Sinisterra v. United States, 600
F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to
vacate under § 2255 may be summarily dismissed without a
hearing if (1) the movant's allegations, accepted as
true, would not entitle the movant to relief, or (2) the
allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or
conclusions rather than statements of fact. Engelen v.
United States, 68 F.3d 238, 240 (8th Cir. 1995);
see Sinisterra, 600 F.3d at 906.
defendant was convicted, in this case and another case, of
three counts of bank robbery in violation of 18 U.S.C. §
2113(a) and two counts of use of a weapon during a crime of
violence in violation of 18 U.S.C. § 924(c)(1)(A).
Filing 74 at 1. The defendant was sentenced to a
term of 370 months: 10 months for each bank robbery,
sentences to run concurrently; 60 months for one of the
weapons charges, consecutive to the prior sentence, and 300
months on the remaining weapons charge, to run consecutive to
any other term of imprisonment imposed. Filing 74 at
defendant's motion is directed at the weapons charges:
the defendant contends that pursuant to Johnson, the
residual clause of the definition of "crime of
violence" set forth in § 924(c)(3)(B) is
unconstitutionally vague because, the defendant argues, it is
substantially identical to the language struck down in
Johnson. But the Eighth Circuit disagrees.
United States v. Prickett, No. 15-3486, 2016 WL
5799691, at *3 (8th Cir. Oct. 5, 2016). The defendant is
critical of the Eighth Circuit's reasoning. Filing 81
at 8. But whether a statute is constitutional is a
question of law, United States v. Frison, 825 F.3d
437, 441 (8th Cir. 2016), and the Court is not at liberty to
disagree with the Court of Appeals, see Hood v.
United States, 342 F.3d 861, 864 (8th Cir. 2003).
short, under the Eighth Circuit's precedent, the
defendant's allegations entitle him to no relief.
Accordingly, his § 2255 motion will be summarily
movant cannot appeal an adverse ruling on his § 2255
motion unless he is granted a certificate of appealability.
28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). A
certificate of appealability cannot be granted unless the
movant "has made a substantial showing of the denial of
a constitutional right." 28 U.S.C. §
2253(c)(2). To make such a showing, the movant must
demonstrate that reasonable jurists would find the
Court's assessment of the constitutional claims debatable
or wrong. Tennard v. Dretke, 542 U.S. 274, 282
(2004); see also Gonzalez v. Thaler, 132
S.Ct. 641, 648 (2012).
case, the defendant has failed to make a substantial showing
of the denial of a constitutional right: Prickett is
squarely on point. Accordingly, the Court will not issue a
certificate of appealability.
1. The defendant's pro se motion to vacate under 28
U.S.C. § 2255 (filing 77) is denied.
2. The defendant's amended motion to vacate under 28
U.S.C. § 2255 (fil ...