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House v. USA

United States District Court, N.D. Mississippi, Greenville Division

April 13, 2018

GEORGE HOUSE, JR. PETITIONER
v.
USA RESPONDENT

          MEMORANDUM OPINION

          NEAL B. BIGGERS SENIOR U.S. DISTRICT JUDGE

         This matter comes before the court on the motion of George House, Jr. to vacate, set aside, or correct his sentence under 28 U.S.C.A. §2255. The government has responded to the motion, and the matter is ripe for resolution.

         Facts and Procedural Posture

         House was charged in a superseding indictment with bank robbery by use of force or violence (Count I), use of a firearm during a crime of violence (Count II), and possession of a firearm by a convicted felon (Count III).[1] ECF doc. 22. Specifically, House was charged with robbing the Planters Bank and Trust in Greenville, Mississippi, using a Sundance A 25 semiautomatic handgun, and placing “in jeopardy the life of another person by the use of a dangerous weapon.” Id. at 1. On April 23, 2012, House pleaded guilty to Counts I and II of the superseding indictment. ECF doc. 28. House was sentenced to serve a term of 188 months on Count I and a mandatory term of 84 months on Count II, to run consecutively, and Count III was dismissed. ECF doc. 36. In addition, House was sentenced as a career offender pursuant to U.S.S.G. §§ 4B1.1(c)(3) and 5G1.2(e).

         On June 23, 2016, House filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. §2255. ECF doc. 38. In his motion, House asserts that, under the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), none of House's prior convictions qualify as a crime of violence for the purposes of deeming House a career offender under the Guidelines. House also asserts that the “residual clause” of 18 U.S.C.A. §924(c) is unconstitutionally vague under the Johnson, infra holding and, therefore, his sentence in Count II is invalid. For the reasons discussed below, House is not entitled to relief under 28 U.S.C.A. §2255.

         Scope of §2255 Review

         There are four grounds upon which a federal prisoner may seek to vacate, set aside, or correct his sentence: (1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction to impose the sentence; (3) that the sentence exceeds the statutory maximum sentence; or (4) that the sentence is “otherwise subject to collateral attack.” 28 U.S.C. §2255; see United States v. Cates, 952 F.2d 149, 151 (5thCir.1992). The scope of relief under §2255 is the same as that of a petition for a writ of habeas corpus. Cates, 952 F.2d at 151.

         A defendant seeking relief under 28 U.S.C. §2255 may not do so to raise issues that could have been raised on appeal. United States v. Walling, 982 F.2d 447, 448-449 (10th Cir. 1992). A petitioner may not raise constitutional issues for the first time on post-conviction collateral review unless he shows cause for failing to raise the issue on direct appeal and actual prejudice resulting from the error. United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992), cert. denied, 506 U.S. 1007 (1992); United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991). The burden of showing “cause, ” an “objective factor external to the defense, ” rests with the petitioner. McCleskey v. Zant, 111 S.Ct. 1454, 1470 (1991). No. other types of errors may be raised on collateral review unless the petitioner demonstrates that the error could not have been raised on direct appeal, and if not corrected, would result in a complete miscarriage of justice. Pierce, 959 F.2d at 1301; Shaid, 937 F.2d at 232. Further, if a claim is raised and considered on direct appeal, a defendant may not raise the issue in a later collateral attack. Moore v. United States, 598 F.2d 439, 441 (5th Cir. 1979).

         The Johnson Decision

         House asserts that, under Johnson v. United States, 135 S.Ct. 2551 (2015), his “career offender enhancement and mandatory sentence pursuant to 18 U.S.C. §924(c) should be vacated” because House's crimes do not constitute crimes of violence for those purposes. ECF doc. 38, pg. 1. In Johnson, supra, the Supreme Court considered the constitutionality of the “residual clause” of the Armed Career Criminal Act. The A.C.C.A. provides for the enhanced sentencing of a convicted felon who “has three previous convictions … for a violent felony or a serious drug offense, or both….” 18 U.S.C.A. §924(e)(1). The A.C.C.A. further defines a “violent felony” as a crime punishable by more than one year that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another

18 U.S.C.A. §924(e)(2)(B)(emphasis added). The Johnson decision specifically addresses the “residual clause” of subsection (ii), which is italicized above. The Court found that, for the purposes of the A.C.C.A., “the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges.” Johnson, 135 S.Ct. at 2557. As such, the Johnson Court ultimately held that the residual clause of the A.C.C.A. was unconstitutionally vague.[2] Id. at 2563.

         House's ...


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