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Barnes v. United States

United States District Court, S.D. Mississippi, Northern Division

April 10, 2018

MICHAEL JAMES BARNES PETITIONER
v.
UNITED STATES OF AMERICA RESPONDENT

          MEMORANDUM OPINION AND ORDER

          DAVID BRAMLETTE UNITED STATES DISTRICT JUDGE.

         Petitioner, Michael James Barnes (“Barnes”), filed a pro se motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255 (docket entry 30). The Government has moved to dismiss Barnes's motion (docket entry 36), and Barnes, now represented by counsel, has responded to the Government's motion (docket entry 37). Having considered the pleadings and the record, including the relevant parts of the underlying criminal case and the relevant law, the Court finds as follows:

         On April 16, 2013, a federal grand jury returned an indictment charging Barnes with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Pursuant to the terms of a plea agreement, Barnes pled guilty. See minute entry of July 9, 2013. Barnes raised no objections regarding his prior convictions reflected in his Pre-Sentence Report (“PSR”).[1] On September 30, 2013, the Court imposed a below-guidelines sentence of 180 months in prison followed by a three-year term of supervised release. (Minute entry of Sept. 30, 2013).

         Despite having waived his right to attack his sentence through a § 2255 motion in his plea agreement, almost two years later, on September 21, 2015, Barnes filed his pro se § 2255 motion seeking collateral review of his sentence under the authority of Samuel Johnson v. United States, 135 S.Ct. 2551 (2015)(hereafter “Samuel Johnson”), which held that the so-called “residual clause” of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally void for vagueness under the Due Process Clause. Thereafter, in Welch v. United States, 136 S.Ct. 1257 (2016), the Supreme Court held that the Samuel Johnson decision applies retroactively on collateral review. Barnes argues that his below-Guidelines sentence is unconstitutional because the Guidelines sentencing enhancement under the residual clause of U.S.S.G. § 4B1.2(a)(2) has verbiage identical to the residual clause in the ACCA. (Docket entry 30, p.2).

         Under 28 U.S.C. § 2255, a prisoner may move the convicting court to vacate, set aside, or correct his conviction or sentence. Section 2255 provides four grounds: “(1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is ‘otherwise subject to collateral attack.'” United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996)(citation omitted).

         “It has, of course, long been settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.” United States v. Addonizio, 442 U.S. 178, 184 (1979). “Section 2255 does not offer recourse to all who suffer trial errors.” United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. Unit A 1981). It may also “not do service for an appeal.” United States v. Frady, 456 U.S. 152, 165 (1982). After conviction and the exhaustion or waiver of all appeals, the Court is “entitled to presume” that the prisoner “stands fairly and finally convicted.” Id. at 164.

         In his pro se Motion to Vacate under 28 U.S.C. § 2255 (docket entry 30), Barnes claims that in light of the Supreme Court's decision in Samuel Johnson, his prior Florida convictions for Attempted Robbery, Kidnapping, and Burglary of a Dwelling as reflected in his Indictment “should no longer qualify as ‘violent felonies' under the remaining clauses of § 924(e)(2)(B) nor as ‘crimes of violence' under the Guidelines.”[2] (Docket entry 30, p.4).

         However, the Government claims that Barnes has failed to demonstrate that the residual clause of § 924(e)(2)(B) informed his sentence such that Samuel Johnson would permit his sentence to be properly revisited by this Court for collateral review.

         The Government contends that Barnes raised no objections to his PSR concerning the number or nature of his prior convictions that might qualify him as an Armed Career Criminal under § 924(e)(2)(B)[3], and Barnes's motion does not question that his prior narcotics conviction is a qualifying offense.[4] Moreover, the Supreme Court specifically excluded application of Samuel Johnson to other clauses of the ACCA, stating, “Today's decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony.” (135 S.Ct. at 2563). Barnes's motion acknowledges that limitation. (See docket entry 30, p.7 (“The [Samuel Johnson] holdings are limited to ... language ... commonly referred to as the residual clause.”); and p.8 (“The [Samuel Johnson] Court also stated that its ruling is inapplicable to the enumerated “violent felonies” stated in § 924(e)(2)(B)(ii) ....”)).

         Despite the Supreme Court's specific limitation of the Samuel Johnson decision to the residual clause, Barnes takes the position that, since the residual clause of § 924(e)(2)(B) is now deemed unconstitutionally vague, Samuel Johnson provides him another opportunity to revisit and challenge his qualifying convictions under the remaining provisions of § 924(e)(2)(B) - specifically, the elements/force clause of § 924(e)(2)(B)(I) and/or the enumerated clause of § 924(e)(2)(B)(ii). However, since Samuel Johnson does not call into question the remaining ACCA clauses, that decision procedurally does not permit Barnes to raise an untimely argument involving the elements/use-of-force clause in § 924(e)(2)(B)(i) or the enumerated crimes clause in § 924(e)(2)(B)(ii), particularly where his legal analysis that is focused on “physical force” (a non-constitutional issue) relies on Curtis Johnson v. United States, 130 S.Ct. 1265 (2010)(hereafter “Curtis Johnson”) which did not recognize a new constitutional right available on collateral review. Barnes's argument under this decision was available for timely assertion at his sentencing, on his direct appeal, or in a § 2255 motion in compliance with § 2255(f), all of which Barnes failed to make. Barnes cannot properly acquire collateral review under the auspices of Samuel Johnson and Welch (which held that the Samuel Johnson decision applies retroactively on collateral review) to overcome the existing time-bar on his non-constitutional “physical force” claim that is actually premised on prior case law in existence at the time he was sentenced. See Curtis Johnson; see also United States v. Weilburg, 2017 WL 62522, *3 (D. Nev. January 4, 2017)(noting that the defendant's motion under Samuel Johnson was not statutorily timely as to any argument under Curtis Johnson). Thus, according to the Government, Barnes's motion is untimely under 28 U.S.C. § 2255(f) and is procedurally barred.

         In addition, Barnes's Motion to Vacate is based on the premise that Samuel Johnson applied to the Sentencing Guidelines, and that it did so on collateral review. However, in Beckles v. United States, 2017 WL 855781 (Mar. 6, 2017), the Supreme Court determined that Samuel Johnson does not apply to the Sentencing Guidelines:

At the time of petitioner's sentencing, the advisory Sentencing Guidelines included a residual clause defining a “crime of violence” as an offense that “involves conduct that presents a serious potential risk of physical injury to another.” United States Sentencing Commission, Guidelines Manual § 4B1.2(a)(2)(Nov. 2006) (USSG). This Court held in [Samuel Johnson, 135 S.Ct. 576 at 2563] that the identically worded residual clause in the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague. Petitioner contends that the Guidelines' residual clause is also void for vagueness. Because we hold that the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause, we reject petitioner's argument.

Beckles, 2017 WL 855781 at *3.

         The Government asserts that the Supreme Court's holding in Beckles renders Barnes's § 2255 motion as it pertains to the Guidelines substantively without merit. Moreover, because the Supreme Court did not apply Samuel Johnson to guideline career offenders, Samuel Johnson does not apply to guideline career offenders on collateral review, and to the extent Barnes argues that Samuel Johnson applies to the Sentencing Guidelines, his § 2255 motion is untimely under 28 U.S.C. § 2255(f)(1).

         Section 2255 contains a one-year statute of limitations for a motion pursuant to 28 U.S.C. § 2255:

A 1-year period of limitation shall apply to a motion under this section. 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 diligence.

28 U.S.C. § 2255(f).

         For purpose of the one-year statute of limitations, a case is final when a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied. Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987); United States v. Thomas, 203 F.3d 350, 352 (5th Cir. 2000). When a prisoner does not take a direct appeal from his conviction, the conviction becomes final when the time for filing a notice of appeal expires. United States v. Plascencia, 537 F.3d 385, 388-89 (5th Cir. 2008); Sanchez Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004); Wims v. United States, 225 F.3d 186, 188 (2nd Cir. 2000).

         The docket in this case indicates that Barnes did not seek an appeal to the Fifth Circuit; therefore, the one-year statute of limitations under Section 2255(f)(1) expired on or about November 8, 2014. Barnes filed his Section 2255 motion on September 21, 2015, which was after the deadline. (Docket entry 30). And, because the Supreme Court did not hold that Samuel Johnson applies to Sentencing Guidelines cases on collateral review, the motion is not subject to the extended statute of limitations under 28 U.S.C. § 2255(f)(3). Thus, according to the Government, Barnes's motion as it pertains to the Sentencing Guidelines is likewise time-barred.

         In addition, Barnes specifically waived his right to attack his sentence when he signed a plea agreement. Pursuant to Federal Rule of Criminal Procedure 11(c), Barnes entered a guilty plea predicated on a signed plea agreement. (Docket entry 17). Barnes's plea and the plea agreement were accepted by the Court. (Minute entry of 07/09/2013). Paragraphs 7 and 7(b) of the Plea Agreement, entered into with the advice of counsel, [5] provide as follows:

Defendant, knowing and understanding all of the matters aforesaid, including the maximum possible penalty that could be imposed, and being advised of his rights to remain silent, to trial by jury, to subpoena witnesses on his own behalf, to confront the witnesses against Defendant, and to appeal the conviction and sentence, in exchange for the U.S. Attorney entering into this plea agreement and accompanying plea agreement supplement, hereby expressly waives the following rights:
The right to contest the conviction and sentence or the manner in which the sentence was imposed in any post-conviction proceeding, including but not limited to a motion brought under Title 28, United States Code, Section 2255 ...

(Docket entry 17, ¶¶ 7, 7(b)).

         When Barnes signed his plea agreement, he expressly waived his right to appeal his conviction and his sentence in any post-conviction proceedings. The Court accepted Barnes's guilty plea, entered a judgment of conviction, and sentenced Barnes.

         “As a general rule, a voluntary, unconditional guilty plea waives all nonjurisdictional defects in the proceedings against the defendant.” United States v. Hoctel, 154 F.3d 506, 507 (5th Cir. 1998). In addition to the general waiver resulting from a defendant's unconditional guilty plea, a defendant may agree to surrender his right to contest his sentencing as part of a plea agreement with the Government. Id. at 508.

         Courts have long enforced waivers of collateral attack rights in plea agreements. See, e.g., United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994)(“As a general matter, therefore - and at least under the facts and circumstances of this case - an informed and voluntary waiver of post-conviction relief is effective to bar such relief.”); see also Garcia-Santos v. United States, 273 F.3d 506, 509 (2nd Cir. 2001). This is true even where ...


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