Gamble v. United States of America
Filing
9
MEMORANDUM OPINION AND ORDER: In light of the foregoing, Gamble's § 2255 petition is DENIED, and Gamble's Motion to Hold Proceedings in Abeyance 3 , Motion to Appoint Counsel 4 , and Motion for Clarification 6 are MOOT. Signed by Judge Abdul K Kallon on 9/24/2018. (AFS)
FILED
2018 Sep-24 AM 11:15
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMIE LEE GAMBLE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Civil Action Number
2:16-cv-08140-AKK
MEMORANDUM OPINION AND ORDER
Jamie Lee Gamble, 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). Docs. 1, 2. For the
reasons explained below, Gamble’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
Gamble pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1), and this court entered judgment against him on
October 15, 2015. See United States v. Gamble, No. 2:14-cr-00348, doc. 35. After
considering his presentence investigation report, the court sentenced Gamble to 51
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months in federal prison. Id. On August 4, 2016 Gamble petitioned this court for
relief under 28 U.S.C. § 2255, arguing that the Court should re-sentence him in
light of Johnson v. United States, 135 S. Ct. 2551 (2015), which declared void for
vagueness the residual 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.” Docs. 1, 2. Under
Johnson, Gamble contends that his sentence was increased as a result the court
purportedly qualifying his prior conviction of burglary in the second degree as a
“crime of violence” under the ACCA’s residual clause. Id.
III.
ANALYSIS
Seven months after Gamble filed his petition, the United States Supreme
Court issued an opinion in Beckles v. United States, 137 S. Ct. 886 (2017), which
considered whether Johnson applies to the Advisory Sentencing Guidelines. The
Court held that the Advisory Guidelines “are not subject to a vagueness challenge
under the Due Process Clause” and that “the residual clause in § 4B1.2(a)(2)
therefore is not void for vagueness.”
Id. at 892.
The Court explained that
“[u]nlike the ACCA, . . . the Advisory Guidelines do not fix the permissible range
of sentences.
To the contrary, they merely guide the exercise of a court’s
discretion in choosing an appropriate sentence within the statutory range.” Id.
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Like the plaintiff in Beckles, Gamble challenges his sentence under the Due
Process clause for relying on an allegedly vague term in the Guidelines. Doc. 2 at
5.
However, because Gamble was convicted of being a felon in possession of a
firearm, 18 U.S.C. § 922(g), the court applied the guidelines found in U.S.S.G.
§2K2.1, not the ACCA residual clause, to enhance his sentence. See United States
v. Gamble, No. 2:14-cr-00348, doc. 33 at 6-10. In doing so, the court found that
Gamble’s prior conviction for second-degree burglary was considered “a crime of
violence as defined at U.S.S.G § 4B1.2(a)(2).” Id. at 6-7. In light of Beckles
declaring that Johnson does not apply to this sentencing guideline, Gamble’s
petition must be denied. Beckles, 137 S. Ct. at 892.1
IV.
CONCLUSION AND ORDER
In light of the foregoing, Gamble’s § 2255 petition is DENIED, and
Gamble’s Motion to Hold Proceedings in Abeyance, doc. 3, Motion to Appoint
Counsel, doc. 4, and Motion for Clarification, doc. 6, are MOOT.
DONE the 24th day of September, 2018.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
1
Even if Gamble’s second-degree burglary charge was enhanced under the ACCA, the Eleventh
Circuit has held that “[b]urglary is one of the offenses listed in the ACCA’s enumerated crimes
clause. 18 U.S.C. § 924(e)(2)(B)(ii).” United States v. Turner, 2018 WL 3359603, at *2 (11th
Cir. July 10, 2018). Thus, Johnson’s effect on the ACCA’s residual clause would still not apply
to Gamble’s petition.
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