United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
A. KIMBALL United States District Judge.
matter is before the court on the United States of
America's Motion to Dismiss Petitioner Michael Wayne
Ellis's Motion to Vacate, Set Aside, or Correct Sentence
under 28 U.S.C. § 2255. On January 23, 2003, Mr. Ellis
pleaded guilty to one count of possession of cocaine with
intent to distribute in violation of 21 U.S.C. §
841(a)(1). Based on his guilty plea, the court entered
judgment as to Mr. Ellis on May 12, 2003, and sentenced Mr.
Ellis to 262 months of imprisonment followed by a term of
supervised release of 60 months. Mr. Ellis appealed his
judgment, but the United States Court of Appeals for the
Tenth Circuit affirmed the judgment on June 14, 2004. After
the United States Supreme Court issued its decision in
United States v. Booker, 543 U.S. 220 (2005), Mr.
Ellis filed a pro se motion under 28 U.S.C. §
2255, which the court denied on January 24, 2006. On June 12,
2006, the court also denied Mr. Ellis's pro se
motion under Federal Rule of Civil Procedure 60(b).
9, 2016, the Tenth Circuit authorized Mr. Ellis to file a
second or successive 28 U.S.C. § 2255 motion to assert a
claim for relief based on Johnson v. United States,
135 S.Ct. 2551 (2015). Based on that authorization, Mr. Ellis
filed a Motion to Vacate, Set Aside, or Correct Sentence
under 28 U.S.C. § 2255 on June 6, 2016. Although the
case was stayed for a time pursuant to a General Order of the
court, the stay was lifted on January 31, 2017. On March 16,
2017, Mr. Ellis filed a Notice of Supplemental Authority to
inform the court of the Supreme Court's decision in
Beckles v. United States, 137 S.Ct. 886 (2017). On
March 20, 2017, the United States filed a Motion to Strike
Notice of Supplemental Authority, and on March 21, 2017, the
United States filed a Motion to Dismiss Mr. Ellis's
Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. § 2255.
motion, the United States argues that the court should
dismiss Mr. Ellis's 28 U.S.C. § 2255 motion because,
among other things, Johnson does not apply to Mr.
Ellis's case and Mr. Ellis's petition is untimely.
Because the timeliness of Mr. Ellis's petition affects
the court's jurisdiction to entertain the merits of the
petition, the court will address timeliness first. Because
the court concludes that Mr. Ellis's petition is not
timely, the court will not address the other arguments in the
motion to dismiss.
district court is authorized to modify a Defendant's
sentence only in specified instances where Congress has
expressly granted the court jurisdiction to do so.”
United States v. Blackwell, 81 F.3d 945, 947 (10th
Cir. 1996). Under 28 U.S.C. § 2255, a prisoner in
custody can move the court to vacate, set aside, or correct a
sentence if the sentence was unconstitutional, illegal, in
excess of the maximum authorized by law, or otherwise subject
to collateral attack. A one-year statute of limitation
applies to motions brought under § 2255.
The limitation period shall run from the latest of (1) the
date on which the judgment of conviction becomes final; (2)
the date on which the impediment to making a motion created
by governmental action in violation of the Constitution or
laws of the United States is removed, if the movant was
prevented from making a motion by such governmental action;
(3) 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; or (4) the date on
which the facts supporting the claim or claims presented
could have been discovered through the exercise of due
28 U.S.C. § 2255(f).
Judgment in Mr. Ellis's underlying criminal case was
entered on May 12, 2003. Mr. Ellis filed an appeal, which was
decided on June 14, 2004, and the Judgment became final, and
the one-year statute of limitations began to run, on that
date. Absent an event restarting the one-year period, Mr.
Ellis would be time barred from filing a petition after June
14, 2005, which would include his § 2255 petition, which
he filed on June 6, 2016.However, Mr. Ellis argues that the
Supreme Court decision in Johnson, decided June 26,
2015, asserted a new right that is retroactively applicable
to Mr. Ellis's case and that, therefore, restarted the
one-year period per 28 U.S.C. § 2255(f)(3).
Ellis is correct that Johnson asserted a new right
that was made retroactively applicable to cases on collateral
review in Welch v. United States, 136 S.Ct. 1257
(2016). However, the right recognized by the Supreme Court in
Johnson does not apply to Mr. Ellis's case. In
Johnson, the Supreme Court held that “imposing
an increased sentence under the residual clause of the Armed
Career Criminal Act [“ACCA”] violates the
Constitution's guarantee of due process” because
the residual clause of the ACCA is unconstitutionally vague.
Johnson v. United States, 135 S.Ct. 2551, 2563
(2015). Mr. Ellis's sentence was increased under the
residual clause of the United States Sentencing Commission
Guidelines (“USSG”) § 4B1.2, not under the
residual clause of the ACCA. Therefore, the right recognized
in Johnson does not apply to Mr. Ellis's case.
Ellis argues that, because the language in the residual
clause of USSG § 4B1.2 is “virtually
identical” to the language in the residual clause of
the ACCA, that the right recognized in Johnson
should apply to his case. See United States v.
Madrid, 805 F.3d 1204, 1210 (10th Cir. 2015). As support
for his position, Mr. Ellis cites United States v.
Madrid, where the Tenth Circuit relied on the reasoning
in Johnson to “hold that the residual clause
of § 4B1.2(a)(2) is void for vagueness.”
Id. at 1211.
court disagrees with Mr. Ellis's argument for two major
reasons. First, a right recognized by the Tenth Circuit is
not sufficient under the terms of the relevant statute to
grant the court the jurisdiction to modify Mr. Ellis's
sentence. See 28 U.S.C. § 2255(f)(3) (requiring
a right to be “newly recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review” (emphasis added)). Second, assuming
a right recognized by the Tenth Circuit was sufficient to
grant the court jurisdiction to modify Mr. Ellis's
sentence, Madrid is not directly applicable to Mr.
Ellis's case. The defendant in Madrid was
sentenced under USSG 4B1.2 after the Supreme Court decided in
United States v. Booker, 543 U.S. 220 (2005), that
the sentencing guidelines are advisory and not mandatory. In
Beckles v. United States, the Supreme Court
addressed whether the holding in Johnson applies to
the advisory sentencing guidelines and held “that the
advisory Sentencing Guidelines are not subject to a vagueness
challenge under the Due Process Clause and that §
4B1.2(a)'s residual clause is not void for
vagueness.” 137 S.Ct. 886, 895 (2017); see also
United States v. Pena, No. 16-6340, 2017 WL 1826848, at
*1 (10th Cir. May 4, 2017) (recognizing that “the U.S.
Supreme Court overruled [Madrid] in Beckles v.
United States”). Therefore, neither the Supreme
Court in Beckles nor the Tenth Circuit in
Madrid directly addressed “the question
whether defendants sentenced to terms of imprisonment before
[the Supreme Court's] decision in United States v.
Booker, 543 U.S. 220 (2005) . . . may mount vagueness
attacks on their sentences.” Beckles, 137
S.Ct. at 903 n.4 (Sotomayor, J., concurring). Because Mr.
Ellis was sentenced under the mandatory sentencing guidelines
before the Supreme Court's decision in Booker,
the court concludes that neither the Tenth Circuit's
decision in Madrid nor the Supreme Court's
decision in Beckles directly applies to Mr.
the court concludes that Johnson does not apply to
Mr. Ellis's case and that neither the Supreme Court nor
the Tenth Circuit has directly recognized a right to modify a
sentence increased under the residual clause of USSG §
4B1.2 before Booker, the court concludes that the
United States' Motion to Dismiss should be granted
because Mr. Ellis's petition is untimely.
United States also moves to strike Mr. Ellis's Notice of
Supplemental Authority because Mr. Ellis failed to comply
with DUCivR 7-1(b)(4) by not including a reference to the
relevant page within the supplemental authority and by
improperly including argument within the notice. Although the
court agrees that Mr. Ellis failed to comply with the local
rule in his Notice of Supplemental Authority, the court
denies the motion to strike that authority. The court is
aware of the portions of the supplemental authority that
apply to this case, and the court will only entertain
arguments from the parties as they are properly brought
before the court.
to Rule 11 of the Rules Governing Section 2255 Proceedings
for the United States District Courts, “[t]he district
court must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant.”
Under 28 U.S.C. § 2253, a certificate of appealability
"may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2); United States
v. Silva, 430 F.3d 1096, 1100 (10th Cir.2005) (quoting
28 U.S.C. § 2253(c)(2)). The court finds that
“reasonable jurists could not debate whether the
petition should have been resolved in a different manner or
that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). The court concludes
that Mr. Ellis has not made a substantial showing of the
denial of a constitutional ...