United States District Court, N.D. Mississippi, Greenville Division
GEORGE HOUSE, JR. PETITIONER
B. BIGGERS SENIOR U.S. DISTRICT JUDGE
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.
and Procedural Posture
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). 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).
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.
of §2255 Review
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.
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).
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
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. Id. at 2563.