United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN UNITED STATES MAGISTRATE JUDGE
HONORABLE JAMES R. NOWLIN UNITED STATES DISTRICT JUDGE
the Court is Reginald Dwayne Ellison's Motion to Vacate,
Set Aside, or Correct Sentence by a Person in Federal
Custody, filed on January 6, 2017. Dkt. No. 250. The
undersigned magistrate judge submits this Report and
Recommendation pursuant to 28 U.S.C. §636(b) and Rule 1
of Appendix C of the Local Court Rules.
jury trial, on November 14, 1996, Reginald Dwayne Ellison was
found guilty of possession with intent to distribute cocaine
in violation of 21 U.S.C. § 841(a)(1) and conspiracy to
possess with intent to distribute cocaine in violation of 21
U.S.C. § 846. Dkt. No. 130. On March 20, 1997, the
District Court sentenced him to 360 months of imprisonment,
followed by a five-year term of supervised released, a $10,
000 fine with interest, and a $100 special assessment fee on
Count One, and a concurrent sentence of 360 months of
imprisonment, followed by a five-year term of supervised
release, and a $100 special assessment on Count Two. Dkt. No.
150. Ellison's sentence was enhanced under the residual
clause of U.S.S.G. § 4B1.1. Ellison appealed his
conviction, and it was affirmed on April 13, 1998. Dkt. No.
183. He also filed a Motion for a New Trial, which was denied
on November 12, 1998. Dkt. No. 203.
has consistently pursued the reduction of his sentence.
First, he filed a Motion for Reduction or Modification of
Sentence Pursuant to 18 U.S.C. § 3582, which was denied
on December 8, 1998. Dkt. No. 209. Then, Ellison filed a
Motion to Reduce or Correct Sentence under Rule 35, which was
denied on April 19, 2005 (Dkt. No. 220), and again on June
12, 2008 (Dkt. No. 227). After an appeal, this last order was
affirmed by the Fifth Circuit on January 5, 2011. Following
this, Ellison again filed a Motion for Retroactive
Application of Sentencing Guidelines to Crack Cocaine Offense
Under 18 U.S.C. § 3582, which was denied on April 19,
2012 (Dkt. No. 241), and dismissed on appeal for failure to
prosecute on January 14, 2014 (Dkt. No. 246). Finally,
Ellison filed the instant Motion to Vacate Under § 2255
on January 6, 2017, requesting relief under Beckles v.
United States and Johnson v. United States, 135
S.Ct. 2251 (2015).
motion, Ellison argues that the enhancement of his sentence
under the residual clause in U.S.S.G. § 4B1.1 was
unconstitutional and he should be resentenced without
enhancement, based on the Supreme Court's decisions in
Johnson v. United States, 135 S.Ct. 2551 (2015) and
Beckles v. United States. Dkt. No. 250 at 1. Two
months after Ellison's motion to vacate was filed, the
Supreme Court held in Beckles that the Sentencing
Guidelines were not subject to Due Process Clause vagueness
challenges because they are advisory and are used by judges
in a discretionary manner to determine sentencing within a
statutory range. Beckles, 137 S.Ct. at 892. As a
result, Ellison's claim is barred.
federal law a movant under § 2255 generally must file
his claim for relief within one year of the date his
conviction becomes final. 28 U.S.C. § 2255(f)(1).
Ellison appealed his conviction, and the Fifth Circuit
affirmed it on April 13, 1998. He did not file a writ of
certiorari with the Supreme Court, which means that his
conviction became final on July 13, 1998. See Clay v.
U.S., 537 U.S. 522 (2003) (holding that the a judgment
of conviction becomes final when the time expires for filing
a petition for certiorari contesting the appellate
court's affirmation of the conviction). Thus, unless one
of the exceptions to the limitations period contained in
§ 2255(f) applies, Ellison's deadline to file a
§ 2255 motion was July 13, 1999. Ellison attempts to
rely on the exception contained in § 2255(f)(3), and the
Beckles and Johnson decisions to overcome
this problem. See Dkt. No. 36 at 5. Under subsection
(f)(3), the one-year limitations period runs from “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.” 28 U.S.C. § 2255(f)(3).
Ellison argues that his motion is not time-barred within the
(f)(3) definition as his claim for relief is based on the
right recognized in Johnson. However, two months
after he filed his case, the Supreme Court decided
Beckles and rejected the very argument Ellison is
raising in his motion.
Beckles, the Court noted that the Sentencing
Guidelines are advisory, not statutory like the ACCA, and
they “merely guide the exercise of a court's
discretion in choosing an appropriate sentence within the
statutory range, ” which meant that the holding in
Johnson did not apply to U.S.S.G.§ 4B1.1.
Beckles, 137 S.Ct. at 892. As the Court explained,
“our cases have never suggested that a defendant can
successfully challenge as vague a sentencing statute
conferring discretion to select an appropriate sentence from
within a statutory range . . . .” Id. at 893.
Thus, the Sentencing Guidelines' discretionary status
meant they were not subject to the same vagueness challenge
raised in Johnson, and which doomed the residual
clause of the ACCA. Id. at 892. To put it another
way, Beckles made it clear that Johnson
does not give Ellison any right to relief from the sentence
he received, and because Johnson is inapplicable,
Ellison does not have a claim for relief that is based on a
right newly recognized by the Supreme Court. As no other
exception to the one year limitations provision applies,
Ellison's case is time barred.
also cannot rely on the Supreme Court's decision in
Johnson. First, as noted, Beckles made
clear that Johnson does not apply to the Sentencing
Guidelines, so any claim based on Johnson fails on
the merits. And second, even if Johnson provided
Ellison with relief, his motion was filed too late even under
the exception provided by § 2255(f)(3). The time in
which to file a Motion to Vacate based on Johnson
was one year from the date on which the Supreme Court first
recognized the right at issue. Dodd v. United
States, 545 U.S. 353, 359 (2005). Johnson was
decided on June 26, 2015, and thus the deadline for making a
Johnson-based motion under § 2255 was June 26,
2016. Ellison did not file his motion until January 6, 2017.
Therefore, even if Ellison had a claim to make under
Johnson, that claim would be time-barred.
upon the foregoing, the Magistrate Court
RECOMMENDS that the District Court
DENY Reginald Dwayne Ellison's Motion to
Vacate, Set Aside, or Correct Illegal Sentence under 28
U.S.C. § 2255 (Dkt. No. 250) as time-barred and as
lacking in merit.