King v. United States of America

Filing 6

MEMORANDUM OPINION and ORDER re 1 2255 Motion to Vacate; for reasons set out within King's petition is DENIED; King's motion is untimely, is procedurally barred, and fails to establish a sufficient basis to vacate his sentence; Accordingly his 2255 petition is DENIED; The motions to appoint counsel and to hold in abeyance, docs. 3 & 4 , are MOOT; The clerk is DIRECTED to close this file. Signed by Judge Abdul K Kallon on 08/07/2017. (KBB)

FILED
2017 Aug-08 AM 09:19
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RODERICK KING,
Petitioner,

v.
UNITED STATES OF AMERICA,
Respondent.

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Civil Action Number
2:16-cv-08133-AKK

MEMORANDUM OPINION AND ORDER
Roderick King, a federal prisoner, seeks to have his sentence vacated, set
aside, or corrected pursuant to 28 U.S.C. § 2255 in light of the Supreme Court’s
decision in Johnson v. United States, 135 S. Ct. 2551 (2015). Doc. 1. For the
reasons explained below, King’s petition is DENIED.
I.

STANDARD OF REVIEW

Following conviction and sentencing, 28 U.S.C. § 2255 allows a federal
prisoner to file a motion in the sentencing court “to vacate, set aside or correct the
sentence” on the basis “that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was without jurisdiction
to impose such a sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack[.]” 28 U.S.C. §
2255(a). To obtain relief under § 2255, a petitioner must: (1) file a non-successive

petition or obtain an order from the Eleventh Circuit authorizing a district court to
consider a successive § 2255 motion, 28 U.S.C. § 2255(h), § 2255 Rule 9; (2) file
the motion in the court where the conviction or sentence was received, see Partee
v. Attorney Gen. of Ga., 451 F. App’x 856 (11th Cir. 2012); (3) file the petition
within the one-year statute of limitations, 28 U.S.C. § 2255(f); (4) be “in custody”
at the time of filing the petition, Spencer v. Kemna, 523 U.S. 1, 7 (1998); (5) state a
viable claim for relief under the heightened pleading standards of § 2255 Rule
2(b), see also McFarland v. Scott, 512 U.S. 849, 856 (1994); and (6) swear or
verify the petition pursuant to 28 U.S.C. § 1746. Finally, “[i]n deciding whether to
grant an evidentiary hearing, a federal court must consider whether such a hearing
could enable an applicant to prove the petition’s factual allegations, which, if true,
would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550
U.S. 465, 474 (2007). However, “if the record refutes the applicant’s factual
allegations or otherwise precludes habeas relief, a district court is not required to
hold an evidentiary hearing.” Id.
II.

PROCEDURAL HISTORY

After King pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) (Count I), see doc. 24 in case no. 2:14-cr-00383AKK-TMP, Judge Inge Johnson sentenced King to a term of imprisonment of
thirty-seven months, see doc. 35 in case no. 2:14-cr-00383-AKK-TMP. King did
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not file a direct appeal. See doc. 1 at 1. As a result, his conviction became final on
May 4, 2015. 1 King subsequently filed this § 2255 motion on June 25, 2016. Doc.
1 at 6.
III.

ANALYSIS

King asks the court to vacate his conviction and sentence in light of Johnson
v. United States, which declared void for vagueness the portion of the Armed
Career Criminal Act (“ACCA”) that defined “violent felony” to include offenses
that “involve[] conduct that presents a serious potential risk of physical injury to
another” comparable to “burglary, arson, or extortion” or an offense that “involves
the use of explosives.” See Johnson, 135 S. Ct. at 2557–60. As the basis for his
motion, King states that his “sentence was increased by [i]ncreasing the base
offense level in 2K2.1 because of a prior conviction that was violent. However,
that “violent crime” was not violent in light of Johnson v. US, 135 S. Ct. 2551
(2015) . . . .” Doc. 1 at 4. Indeed, the Plea Agreement reflects that King had prior
convictions for “Arson, Second Degree” and “Burglary, Third Degree.” See doc.
24 at 3 in case no. 2:14-cr-00383-AKK-TMP.
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When a defendant does not appeal the original judgment of conviction, the judgment
becomes final when the time for filing a direct appeal expires. Mederos v. United States, 218
F.3d 1252, 1253 (11th Cir. 2000). The Federal Rules of Appellate Procedure provide that, in a
criminal case, “a defendant’s notice of appeal must be filed in the district court within 14 days
after the later of: (i) the entry of either the judgment or the order being appealed; or (ii) the filing
of the government’s notice of appeal.” Fed. R. App. P. 4(b)(1)(A). In King’s case, the
fourteenth day from April 20, 2015 was May 4, 2015.

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Sections 2K2.1(a)(4)(A) and 4B1.2(a) of the Sentencing Guidelines provide
for sentencing enhancements if the defendant committed any part of the instant
offense subsequent to sustaining one felony conviction of either a crime of
violence or a controlled substance offense. Therefore, it appears that King is
arguing for extension of Johnson to his sentence, because U.S.S.G. § 2K2.1(a)
incorporates the Guidelines definition of “crime of violence” found in § 4B1.2(a)
that mirrors the language of the invalidated ACCA residual clause. See doc. 2 at 2.
Unfortunately for King, the Supreme Court has held that “[b]ecause the advisory
Sentencing Guidelines are not subject to a due process vagueness challenge, §
4B1.2(a)’s residual clause is not void for vagueness.” See Beckles v. United States,
137 S. Ct. 886, 895 (2017). Moreover, King’s prior arson and burglary convictions
both qualified as crimes of violence under the enumerated clause of the Sentencing
Guidelines’ “crime of violence” definition rather than the residual clause. See
United States v. Archer, 531 F.3d 1347, 1350 (11th Cir. 2008) (“burglary of a
dwelling” is one of the crimes enumerated in the Sentencing Guidelines); United
States v. Rainey, 362 F.3d 733, 735 (11th Cir. 2004) (“[A]rson is an enumerated
offense in the definition of ‘crime of violence’ . . . .”).
IV.

CONCLUSION AND ORDER

Therefore, because King filed this motion after the one year period his
conviction became final, see 28 U.S.C. § 2255(f)(1), and Johnson does not extend
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to enhancements under the Sentencing Guidelines, see Beckles, 137 S. Ct. at 895,
King’s motion is untimely, is procedurally barred, and fails to establish a sufficient
basis to vacate his sentence under 28 U.S.C. § 2255. Accordingly, his § 2255
petition is DENIED. The motions to appoint counsel and to hold in abeyance,
docs. 3 & 4, are MOOT. The clerk is DIRECTED to close this file.
DONE the 7th day of August, 2017.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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