United States District Court, S.D. Mississippi, Northern Division
MEMORANDUM OPINION AND ORDER
BRAMLETTE UNITED STATES DISTRICT JUDGE.
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:
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”). 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).
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).
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).
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.
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.” (Docket entry 30, p.4).
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
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), and Barnes's motion does not question
that his prior narcotics conviction is a qualifying
offense. 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)
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.
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.
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 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
(1) the date on which the judgment of conviction becomes
(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
(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).
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).
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
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,  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
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
(Docket entry 17, ¶¶ 7, 7(b)).
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
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.
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 ...