United States District Court, W.D. Texas, Austin Division
SPARKS UNITED STATES DISTRICT JUDGE.
the Court are Movant Gregory Ben's Motions to Vacate, Set
Aside, or Correct Sentence Under 28 U.S.C. § 2255 (Docs.
68 and 72); Ben's Memorandum in Support (Doc. 74); the
Government's Response (Doc. 78); and Ben's Reply
indicted on February 3, 2004. He was charged with being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1) ("Count One") and possessing a
firearm following a misdemeanor crime of domestic violence in
violation of 18 U.S.C. § 922(g)(9) ("Count
Two"). On March 26, 2004, Ben pleaded guilty to the
indictment without a plea agreement. The Pre-sentence
Investigation Report determined Ben's prior convictions
warranted a base offense level of 24 under U.S.S.G. §
2K2.1(a)(2) because Ben had at least two prior felony
convictions for "crimes of violence, " as defined
by § 4B1.2. This determination was based on the finding
that Ben had three separate convictions for "Aggravated
Robbery" in violation of Texas law, for which Ben was
sentenced to eight years of imprisonment in each case. After
adding two levels because Ben possessed a stolen firearm,
adding four levels because Ben used the firearm to commit the
felony offense of aggravated assault, and deducting three
levels for acceptance of responsibility, the probation
officer calculated Ben's total offense level at 27. This
total offense level, when combined with the criminal history
category of VI, resulted in a guideline range of 130 to 162
months of imprisonment. However, Ben's sentence was
subject to a statutory maximum sentence of 120 months.
15, 2004, the Government moved to dismiss Count Two, and the
Court sentenced Ben on Count One to 120 months of
imprisonment and a three-year term of supervised release. The
Fifth Circuit Court of Appeals affirmed Ben's conviction
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 II), the Supreme Court held that the so-called
"residual clause" of the Armed Career Criminal Act
("ACCA"), 18U.S.C. § 924(e)(2)(B)(ii), was
void for vagueness under due process principles. 135 S.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. 1257, 1268(2016).
through appointed counsel, filed a Motion to Vacate and
Memorandum in Support. (Docs. 68 and 74). 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.
Motion to Vacate (Doc. 68) filed by counsel, Ben argues
Beckles "makes clear" the new rule
announced in Johnson II applies to sentences imposed
under the pre-Booker mandatory Guidelines regime,
and because Ben's sentence was imposed under the residual
clause of a mandatory Guidelines system, Ben's sentence
must be vacated. In his pro se Motion to Vacate (Doc. 72) Ben
challenges his sentence pursuant to United States v.
Tanksley, 848 F.3d 347 (5th Cir. 2016) and Mathis v.
United States, 136 S.Ct. 2243 (2016).
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), Ben's judgment of conviction became
final in 2006. Therefore, the instant motion is clearly
untimely unless Ben can satisfy one of the exceptions found
in § 2255(f)-Ben 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 pxe-Booker mandatory Guidelines. Because the
Supreme Court expressly left open the question of whether
Ben'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
(Petitioner's claims "based on [the right announced
under Johnson II\ cannot be timely under 28 U.S.C.
§ 2255(f)(3) based on this ...