United States District Court, N.D. Mississippi
MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE NORTHERN
DISTRICT OF MISSISSIPPI
matter comes before the court on the motion of Danny Twana
Boose to vacate, set aside, or correct his sentence under 28
U.S.C.A. §2255. ECF doc. 69. The government has
responded to the motion, and the matter is ripe for
and Procedural Posture
1996, Boose was convicted of kidnapping and aggravated sexual
abuse and sentenced to concurrent life terms. Because of two
(2) prior convictions for the burglary and larceny of a
dwelling, Boose was sentenced as a career offender under
Guideline 4B1.1. Boose appealed his convictions and
sentences, which were affirmed by the Fifth Circuit. On July
1, 2016, Boose filed a pro se motion to vacate his
conviction and sentence pursuant to 28 U.S.C.A. §2255,
arguing that he is entitled to relief pursuant to the U.S.
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015). ECF doc. 69. The
government filed a response and the Federal Public
Defender's Office (“FPDO”) was appointed to
represent Boose. ECF docs. 71 and 72. The FPDO has reviewed
the merits of Boose's Johnson claim and has
notified the court that they will not be filing an appearance
on his behalf. For the reasons discussed herein, Boose's
petition is denied.
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).
petition, Boose asserts that, under Johnson, supra,
his prior convictions for burglary do not qualify as crimes
of violence. In Johnson, supra, the Supreme Court
considered the constitutionality of the “residual
clause” of the Armed Career Criminal Act
(“A.C.C.A.”). 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.
Convictions and Sentences are Valid
was not sentenced pursuant to the A.C.C.A. As noted above,
Boose was sentenced as a career offender for the purposes of
the Sentencing Guidelines and received an additional
enhancement under §4B1.1. Because of his career offender
status, among other factors, the applicable sentencing range
under the Guidelines was 360 months to life. The Supreme
Court has held that “the advisory Sentencing Guidelines
are not subject to a due process vagueness challenge.”
Beckles v. U.S., 137 S.Ct. 886, 897 (2017). As such,
the reasoning of the Johnson decision is not
applicable to the Sentencing Guidelines. Moreover, the Fifth
Circuit has held that Johnson does not apply ...