Nelson v. USA

Filing 6

ORDER dismissing 1 Motion to Vacate/Set Aside/Correct Sentence (2255). Please see Ruling & Order for details. The Clerk may close the file. Signed by Judge Robert N. Chatigny on 8/8/2018. (Chenoweth, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
:
VINCENT NELSON,
:
Petitioner,
:
:
PRISONER
v.
:
CASE NO. 3:17-cv-899(RNC)
:
UNITED STATES OF AMERICA,
:
Respondent.
:
:
RULING AND ORDER
Vincent Nelson, proceeding pro se, moves pursuant to 28
U.S.C. § 2255 to vacate his sentence arguing that his base
offense level under U.S.S.G. § 2K2.1(a) should have been 20,
rather than 24, because his prior state conviction for possession
of narcotics with intent to sell did not qualify as a “controlled
substance offense” supporting enhanced punishment under the
guideline.

This is Nelson’s second motion pursuant to § 2255.

See Nelson v. United States, No. 16-cv-985 (RNC) (D. Conn. Apr.
3, 2017).

Under § 2255(h), a second or successive motion

challenging the same sentence is allowed only if the Court of
Appeals certifies that the motion is based on either “newly
discovered evidence” or a “new rule of constitutional law made
retroactive to cases on collateral review by the Supreme Court.”
See Triestman v. United States, 124 F.3d 361, 367-372 (2d Cir.
1997).

Nelson has not obtained a certificate.

Ordinarily, when

a second motion is filed without a certificate, the District
Court should transfer the case to the Court of Appeals. See

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Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996) (per
curiam).

However, transfer is unnecessary when the motion is

wholly without merit.

See Powell v. United States, Nos.

95–CR–08–A, 13–CV–42–A, 2014 WL 2047884, at *2 (W.D.N.Y. May 19,
2014).

For reasons that follow, I conclude that the motion must

be dismissed.
I. Background
In the underlying criminal case, Nelson pleaded guilty to
possession of a firearm by a convicted felon and conspiracy to
possess with intent to distribute 28 grams or more of crack
cocaine.

See Plea Agreement at 1, United States v. Nelson, No.

13-cr-27 (RNC), ECF No. 199.

The presentence report calculated

the guideline range using a base offense level of 24 under
U.S.S.G. § 2K2.1(a)(2) in light of Nelson’s previous state
convictions for
to sell.

assault and possession of narcotics with intent

The base offense level of 24 led to a total offense

level of 29 and a guideline imprisonment range of 121-151 months.
Nelson objected that the narcotics conviction did not qualify as
a “controlled substance offense” within the meaning of the
guideline and argued for a base offense level of 20 under
U.S.S.G. § 2K2.1(a)(4), which would have resulted in a total
offense level of 25 and a range of 84-105 months.
At the sentencing hearing, I agreed with the Probation
Office that the correct base offense level was 24 but sentenced

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Nelson to 90 months’ imprisonment, which I found to be sufficient
but not harsher than necessary.

At the hearing, I specifically

pointed out that the sentence of 90 months was within the range
that would apply if the base offense level were 20 and made it
clear that the same sentence would have been imposed in any
event.1
In 2016, Nelson moved to vacate his sentence on the ground
that his prior assault conviction should not have been used to
increase his base offense level.

See Mot. Vacate Sentence ¶ 7-9,

Nelson v. United States, No. 16-cv-985 (RNC), ECF No. 1.

Relying

on Johnson v. United States, 135 S. Ct. 2551 (2015), which held
that the “residual clause” of the Armed Career Criminal Act was
unconstitutionally vague, he argued that the identically worded
definition of “crime of violence” in the U.S.S.G. § 4B1.2(a) is
also void for vagueness.

The Government moved for an extension

of time to file its response so that Nelson would have an
opportunity to withdraw the motion in view of the intervening
decision in Beckles v. United States, 137 S. Ct. 886 (2017),
which held that the Guidelines are not subject to a vagueness

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I stated:
The guidelines are helpful in requiring all concerned to go
through the steps of looking at all these factors, but in the
final analysis, they’re only advisory and I’m required to impose
a sentence that is sufficient to serve the purposes I outlined
without being harsher than necessary regardless of what the
guideline might say. So that’s what I’ve done. See Sentencing
Tr. at 41-42, United States v. Nelson, No. 13-cr-27 (RNC), ECF
No. 270.
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challenge.

Id. at 895.

voluntary dismissal.

Nelson’s counsel then filed a notice of

Soon after the notice was approved, Nelson

filed the present pro se motion seeking to vacate his sentence on
the ground that his state narcotics conviction should not have
been used to increase the base offense level.
II. Discussion
When a petitioner voluntarily withdraws a § 2255 motion, a
later motion will be considered successive, and thus subject to
the requirement that the movant obtain a certificate from the
Court of Appeals, if the withdrawal occurred in circumstances
making it clear that the movant knew the motion was without
merit.

See Thai v. United States, 391 F.3d 491, 495-96 (2d Cir.

2004).

In a situation similar to the present case, a petitioner

who received a sentencing enhancement under U.S.S.G. § 4B1.2(a)
sought to vacate his sentence based on Johnson.

See Stevenson v.

United States, No. 17-cv-0580-A, 2017 WL 3699309, at *1 (W.D.N.Y.
Aug. 28, 2017).

The petitioner withdrew his motion after the

Supreme Court decided Beckles.

The District Court concluded that

the withdrawn motion counted for purposes of the certification
requirement because there was no reasonable explanation for the
withdrawal other than its lack of merit in light of Beckles.

Id.

at *2.
I reach the same conclusion here.

Nelson withdrew his prior

motion after the Government sought an extension of time to give

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his counsel an opportunity to consult with him about withdrawing
the motion in light of Beckles.

The notice of withdrawal

subsequently filed did not provide a reason for the withdrawal.
In the context provided by the Government’s motion, however, the
reason had to be the impact of Beckles, which rendered Nelson’s
claim meritless.

In the circumstances, the withdrawal was akin

to a voluntary dismissal with prejudice.

Therefore, the present

motion is successive and the certification requirement applies.
To obtain a certificate, Nelson would have to show that he
relies on a new rule of constitutional law made retroactive to
cases on collateral review.

In his motion, he states that he

relies on the Supreme Court’s decision in Mathis v. United
States, 136 S. Ct. 2243 (2016).

The Second Circuit has held that

Mathis does not establish a new rule of constitutional law for
purposes of certifying successive motions under § 2255.

See

Washington v. United States, 868 F.3d 64, 65 (2d Cir. 2017) (per
curiam).

In Washington, the petitioner sought permission to file

a successive motion making the same arguments Nelson makes here.
The Second Circuit denied the request explaining that “the Mathis
Court was interpreting [the] ACCA, not the Constitution.”

Id. at

66.
Even if a certificate were unnecessary in this case (i.e.
even if the prior motion did not count for purposes of the
certification requirement), Nelson still would not be able to

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obtain relief from his sentence.

The record clearly establishes

that if the guideline range had been calculated using a base
offense level of 20, the same sentence of 90 months would have
been imposed.

When the record makes it clear that the same

sentence would have been imposed in any event, a § 2255 motion to
vacate the sentence is properly denied.

See Morales v. United

States, No. 09 Civ. 4394(WHP), 2011 WL 3423937, at *3 (S.D.N.Y.
Aug. 3, 2011); cf. United States v. Shuster, 331 F.3d 294, 297
(2d Cir. 2003) (reviewing court need not adjudicate Sentencing
Guidelines dispute concerning enhancement when record makes it
clear that sentence would remain the same in any event).
III. Conclusion
Accordingly, the motion is hereby dismissed.

No certificate

of appealability will be issued.
The Clerk may enter judgment and close the case.
So ordered this 8th day of August 2018.

/s/ RNC
Robert N. Chatigny
United States District Judge

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