United States District Court, W.D. Texas, Austin Division
SPARKS UNITED STATES DISTRICT JUDGE.
the Court are Movant Donald Lynn Givens's Motion to
Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. §
2255 (Doc. 23); Givens's Amended Motion to Vacate (Doc.
26); Givens' Memorandum in Support (Doc. 28); the
Government's Response (Doc. 31); and Givcns' Reply
was indicted on October 16, 2001, for robbing a bank with the
use of a dangerous weapon in violation of 18 U.S.C. §
2113(a) & (d), and pleaded guilty to the one-count
indictment on February 7, 2002. The Pre-Sentence
Investigation Report found Givens was a "career
offender" within the meaning of U.S.S.G. § 4B1.1,
based on the finding he had two prior felony convictions for
Texas burglary of a habitation that qualified as crimes of
violence. The career-offender designation resulted in a
Guideline range of imprisonment between 188 and 235 months,
subject to a statutory maximum of 25 years.
April 19, 2002, the Court sentenced Givens to 235 months of
imprisonment and a five-year term of supervised release.
Givens did not appeal his conviction or sentence.
was sentenced prior to the Supreme Court's decision in
United States v. Booker, at a time when the
Sentencing Guidelines were deemed mandatory. 543 U.S. 220
(2005). Booker brought an end to the mandatory
Sentencing Guidelines era and ushered in a different regime
of "effectively advisory" Guidelines. See
Booker, 543 U.S. at 245. In Johnson v. United States
(Johnson IT), the Supreme Court held that the so-called
"residual clause" of the Armed Career Criminal Act
("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii), was
void for vagueness under due process principles.
135S.Ct.2551 (2015). The following year, in
Welch v. United States, the Supreme Court held
Johnson II announced a substantive rule that has
retroactive effect in cases on collateral review. 136 S.Ct.
through appointed counsel, filed an Amended Motion to Vacate
and Memorandum in Support. (Docs. 26 and 28). On July 28,
2016, the Court stayed this case pending the Supreme
Court's decision in Beckles v. United States,
137 S.Ct. 886 (2017). In Beckles, the Supreme Court
held Johnson II does not apply to the advisory
Sentencing Guidelines but "[left] open the
question" whether Johnson II applies to the
mandatory Guidelines. Id. at 904 n.4 (Sotomayor, J.,
concurring in the judgment); Raybon v. United
States, 867 F.3d 625, 629 (6th Cir. 2017)
("[W]hether [Johnson II] applies to the
mandatory guidelines ... is an open question."). The
Court lifted the stay following Beckles and ordered
the parties to resume briefing.
instant Motion, Givens argues Beckles "makes
clear" the new rule announced in Johnson II
applies to sentences imposed under the pre-Booker
mandatory Guidelines regime, and because Givens's
sentence was imposed under the residual clause of a mandatory
Guidelines system, Givens's sentence must be vacated.
U.S.C. § 2255
there are four grounds upon which a defendant may move to
vacate, set aside, or correct his sentence pursuant to §
2255: (1) the imposition of a sentence in violation of the
Constitution or the laws of the United States; (2) a lack of
jurisdiction of the District Court that imposed the sentence;
(3) the imposition of a sentence in excess of the maximum
authorized by law; and (4) the sentence is otherwise subject
to collateral attack. 28 U.S.C. § 2255; United
States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996).
Section 2255 is an extraordinary measure; it cannot be used
for errors that are not constitutional or jurisdictional if
those errors could have been raised on direct appeal.
United States v. Stumpf, 900 F.2d 842, 845 (5th Cir.
1990). If the error is not of constitutional or
jurisdictional magnitude, the movant must show the error
could not have been raised on direct appeal and would, if
condoned, "result in a complete miscarriage of
justice." United States v. Smith, 32 F.3d 194,
196 (5th Cir. 1994). In addition, a defendant who raises a
constitutional or jurisdictional issue for the first time on
collateral review must show both "cause" for his
procedural default, and "actual prejudice"
resulting from the error. Placente, 81 F.3d at 558.
Statute of Limitations
2255 contains a one-year limitations period for the filing of
a motion to vacate, set aside, or correct a federal sentence.
See 28 U.S.C. § 2255(f). This limitations
period runs from the latest of: (1) the date on which the
judgment of conviction becomes final; (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 governmental action; (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. Id.
to § 2255(f)(1), Givens's judgment of conviction
became final in 2002. Therefore, the instant motion is
clearly untimely unless Givens can satisfy one of the
exceptions found in § 2255(f). Givens asserts his motion
is timely under the provision in § 2255(f)(3) because it
was filed within one year of Johnson II. Although
Beckles decided Johnson II does
not apply to the post-Booker advisory
Guidelines, Beckles expressly left open whether
Johnson II applies to the pre-Booker
mandatory Guidelines. Because the Supreme Court expressly
left open the question of whether Givens's asserted right
exists, it does not follow, then, that the Supreme Court has
"recognized" that right. See Raybon, 867
F.3d at 629 ("Because it is an open question, it is
not a "right" that "has been newly
recognized by the Supreme Court" let alone one that was
"made retroactively applicable to cases on collateral
review."); United States v. Brown,868 F.3d 297
(4th Cir. 2017) ("If the Supreme Court left open the
question of whether Petitioner's asserted right exists,
the Supreme Court has not 'recognized' that
right."); Washington v. United States, No.
3:16-CV-1598 (N.D. Tex. Oct. 31, 2017), report and
recommendation adopted ...