United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER
N. Parrish, United States District Court Judge.
matter comes before the Court on Petitioner's Motion to
Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C.
§ 2255 and Respondent's motion to dismiss the same.
For the reasons below, the Court denies Petitioner's
motion and grants Respondent's.
1996, Petitioner Alfred Cesspooch was convicted of two counts
of assault and one count of aggravated sexual abuse.
Petitioner's criminal history featured prior convictions
for assault with a deadly weapon, assault on a police
officer, and rape. Consequently, the presentence report
designated him a career offender under USSG §4B1.1, and
he was sentenced to 390 months in prison. Petitioner appealed
his judgment, but the Tenth Circuit affirmed on January 28,
2003. The ninety-day period to file a petition for writ of
certiorari expired on April 28, 2003.
Petitioner asks this Court to correct his sentence in light
of Johnson v. United States, 135 S.Ct. 2551 (2015).
The United States argues that Petitioner's motion should
be dismissed because, among other things, Johnson
does not apply to Petitioner's case and therefore his
motion is untimely. The Court agrees with the United States.
Court may “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). Title 28
U.S.C. § 2255 grants this Court that jurisdiction, but
only within one year of “the date on which the judgment
of conviction becomes final.” 28 U.S.C. §
2255(f)(1). Convictions become final upon conclusion of
direct review. United States v. Carbajal-Moreno, 332
Fed. App'x 472, 474 (10th Cir. 2009). When, as here, the
defendant takes a direct appeal to the court of appeals, the
judgment of conviction becomes final when the Supreme Court
“affirms a conviction on the merits on direct review or
denies a petition for a writ of certiorari, or when
the time for filing a certiorari petition
expires.” Clay v. United States, 537 U.S. 522,
527 (2003). Petitioner's ninety-day period to file a
petition for writ of certiorari expired on April 18,
2003. He filed the motion at issue here on June 21, 2016-well
beyond the one-year limit. Consequently, Petitioner's
motion is untimely unless, as he argues, Johnson
recognized a new right that is retroactively applicable to
his case, restarting the one-year period under 28 U.S.C.
Petitioner asserts that he has the right not to be sentenced
as a career offender under the mandatory guidelines'
residual clause. If the Supreme Court has recognized that
right and the right has been made retroactively applicable to
cases on collateral review, Petitioner's motion is
timely. See id. Otherwise, it is not, and this Court
must dismiss it.
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.
135 S.Ct. at 2563. Therefore, Petitioner argues, “the
identical language in §4B1.2(a)(2) is also
unconstitutionally vague.” ECF No. 1 at 3. In support,
Plaintiff cites the Tenth Circuit's opinion in United
States v. Madrid, which held § 4B1.2(a)(2) void for
vagueness under Johnson. 805 F.3d 1204, 1211 (10th
Cir. 2015). However, after Petitioner filed his motion,
Madrid was abrogated by the Supreme Court's
holding in Beckles v. United States, 137 S.Ct. 886
(2017). Beckles instructed that because the
guidelines are advisory, they “are not amenable to a
vagueness challenge.” Id. at 894.
United States repeats the Beckles holding, insisting
that it controls here. This is incorrect. In Beckles,
the Supreme Court's clear holding was 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.” Id. at 895 (emphasis added).
Writing for the majority, Justice Thomas distinguished
between the mandatory and advisory guidelines. And as Justice
Sotomayor noted in her concurring opinion, “The
Court's adherence to the formalistic distinction between
mandatory and advisory rules at least leaves open the
question whether defendants sentenced to terms of
imprisonment before our decision in [Booker] . . .
may mount vagueness attacks on their sentences.”
Id. at 903 n.4.
did not deny the right Petitioner asserts. But
Johnson did not recognize it. And if Madrid
did recognize such a right, that opinion was abrogated by
Beckles. Therefore, whether Petitioner may
challenge his sentencing under the residual clause of §
4B1.2(a) remains an open question. See United States v.
Miller, No. 16-2229, 2017 WL 3658833, at *3 n.3 (10th
Cir. 2017) (“[W]e express no opinion on whether the
Supreme Court has recognized the right [not to be sentenced
as a career offender under the residual clause of the
mandatory guidelines] for purposes of §
2255(f)(3).”); United States v. Brown, No.
16-7056, 2017 WL 3585073, at *4 (4th Cir. Aug. 21, 2017)
(noting that the Supreme Court “has yet to recognize a
broad right invalidating all residual clauses as void for
vagueness” and holding that petitioner's motion was
therefore untimely); Raybon v. United States, 867
F.3d 625, 629 (6th Cir. 2017) (“[W]hether
[Johnson] applies to the mandatory guidelines . . .
is an open question.”); but see Moore v. United
States, No. 16-1612, 2017 WL 4021654 (1st Cir. Sept. 13,
2017) (granting petitioner sentenced pre-Booker
certification to argue in the district court that
Johnson invalidates the residual clause of the
career offender guideline). As such, the right Petitioner
asserts has not been recognized by the Supreme Court and
certainly has not been “made retroactively applicable
to cases on collateral review.” 28 U.S.C. §
2255(f)(3); see generally Tyler v. Cain, 533 U.S.
656, 663-64 (2001) (holding that “made” means
“held” under identical language in §
2244(b)(2)(A) and that it must be held retroactive by the
Supreme Court). Consequently, Petitioner's motion is
Court's decision is consistent with other decisions in
this district. In Ellis v. United States, the
petitioner challenged his pre-Booker guidelines
enhancement under Johnson. No. 2:16-cv-484, 2017 WL
2345562 (D. Utah, May 30, 2017). And in Rith v. United
States, the petitioner similarly asked the court to
correct his sentence based on Johnson. No.
2:16-cv-00351, 2017 WL 3738549 (D. Utah Aug. 29, 2017). In
both cases, the courts ruled the §2255 motions untimely.
reasons above, Petitioner's motion is untimely. The Court
GRANTS the United ...