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' Motion
to Dismiss Petitioner's Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255. On August
21, 2002, Petitioner Surman Miller was indicted for
violations of 18 U.S.C. §§ 2243(a) and 1153(a) for
sexual abuse of a minor while within Indian Country.
Petitioner pleaded guilty to the charges and, on March 1,
2004, the Honorable David K. Winder sentenced Petitioner to
188 months incarceration with the Bureau of Prisons and a
36-month term of supervised release. Petitioner appealed, and
the Tenth Circuit affirmed his 188-month sentence. On August
18, 2016, Petitioner was released from prison and his term of
supervised release began. On March 2, 2017, Petitioner
admitted to a violation of supervised release and the court
placed Petitioner in the custody of the Bureau of Prisons for
a term of twelve months and a day, with a 48-month term of
motion, the United States argues that the court should
dismiss Petitioner's 28 U.S.C. § 2255 motion
because, among other things, Johnson v. United
States, 135 S.Ct. 2551 (2015), does not apply to
Petitioner's case and Petitioner's petition is
untimely. Because the timeliness of Petitioner's petition
affects the court's jurisdiction to entertain the merits
of the petition, the court will address timeliness first. In
addition, because the court concludes that Petitioner'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 Petitioner's underlying criminal case was
entered on March 1, 2004.
filed an appeal, which was decided on November 8, 2004.
Therefore, this court's Judgment became final, and the
one-year statute of limitations began to run, on that date.
Absent an event restarting the one-year period, Petitioner
would be time barred from filing a petition after November 8,
2005, which would include the § 2255 petition he filed
on June 13, 2016.
Petitioner argues that the Supreme Court decision in
Johnson, decided June 26, 2015, asserted a new right
that is retroactively applicable to Petitioner's case and
that restarted the one-year period under 28 U.S.C. §
2255(f)(3). Petitioner 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 Petitioner'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).
Petitioner'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 Petitioner's case.
Petitioner argues that the language in the residual clause of
USSG § 4B1.2 is “virtually identical” to the
language in the residual clause of the ACCA and 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,
Petitioner 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 Petitioner'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 Petitioner'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)). In a recent case
involving whether Johnson should be extended to
invalidate 18 U.S.C. § 924(c), the Tenth Circuit
explained that “the question is not whether a court of
appeals has recognized the right at issue, but instead
whether the Supreme Court itself has done so.”
United States v. Autobee, 2017 WL 2871893, *3 (10th
Cir. July 6, 2017) (unpublished). Accordingly, the Tenth
Circuit's extension of Johnson to the sentencing
guidelines in Madrid is not determinative.
even assuming a right recognized by the Tenth Circuit was
sufficient to grant the court jurisdiction to modify
Petitioner's sentence, Madrid is not directly
applicable to Petitioner's case. The defendant in
Madrid was sentenced under USSG 4B1.2 after the
Supreme Court, in United States v. Booker, 543 U.S.
220 (2005), decided 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). In determining that Johnson did not apply to
the post-Booker advisory sentencing guidelines, the
Supreme Court overruled Madrid. See 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”). The Supreme Court also recognized
that it was not determining whether Johnson applied
to pre-Booker mandatory guidelines.
Beckles, 137 S.Ct. at 903 n.4 (Sotomayor, J.,
concurring). 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.,
case, Petitioner 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
Petitioner's case. Because 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
Petitioner's § 2255 motion is untimely and this
court lacks jurisdiction to modify Petitioner's sentence.
Accordingly, the court grants the United States' Motion
to Dismiss Petitioner's § 2255 motion.
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 Petitioner has not made a substantial showing of the
denial of a constitutional ...