Roberson v. United States Of America

Filing 9

ORDER adopting 5 Report and Recommendations. Therefore, the 2255 motion is denied without a hearing. This action is closed and judgment shall be entered in favor of the respondent. Accordingly, the Court DENIES a COA in this case. Signed by Judge J. Randal Hall on 6/18/15. (cmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

BOBBY LEE ROBERSON,
Petitioner,
CV 114-140

v.

(Formerly CR 109-139)
UNITED STATES OF AMERICA,

Respondent.

ORDER

After a careful, de novo review of the file, the Court concurs with the Magistrate

Judge's Report and Recommendation, to which objections have been filed (doc. no. 7). The

Magistrate Judge recommended dismissal of Petitioner's motion filed pursuant to 28 U.S.C.
§ 2255 because it is time-barred, and even if not time-barred, the motion has no merit

because Petitioner's prior burglary convictions were properly counted as predicate offenses
under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii).

(See doc. no. 5.)

Nothing in Petitioner's filing undermines the Magistrate Judge's analysis, and the Court
OVERRULES the objections.

The Court also denies Petitioner's request in his objections (doc. no. 7, p. 3) that the

Court postpone a final decision on his §2255 motion until after the United States Supreme
Court decides Johnson v. United States, No. 13-7120, (U.S., argued Apr. 20, 2015). In that

case, the Supreme Court specifically asked the parties to briefthe following issue, "Whether

the residual clause in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii),
is unconstitutionally vague." Id. There is no need to await the Supreme Court's decision for
purposes of deciding Petitioner's pending motion because there is no guarantee as to what
the Supreme Court will decide, let alone whether any such ruling would be applicable on
collateral review.

See Teague v. Lane, 489 U.S. 288, 311-13 (1989) (explaining

requirements for applying a new rule retroactively to cases on collateral review).
Moreover, Petitioner has not demonstrated the relevance of the Supreme Court's
decision in Johnson to this case because he admitted the existence of his prior convictions as

part of his guilty plea and never challenged their proper categorization as predicate offense at
any time during his underlying criminal case before the undersigned. (Doc. no. 5, p. 11.)

Thus, Petitioner invited the purported error of which he complains, and under the invited
error doctrine, the issue is precluded from review. (Id. (collecting Eleventh Circuit cases

applying invited error doctrine in collateral proceedings).) Finally, even if the Supreme
Court's decision were to have some eventual application to Petitioner's allegation of error

regarding his predicate offenses, § 2255 provides mechanisms whereby Petitioner could

attempt to raise any new claim he believes he may have under the Supreme Court's eventual

ruling in Johnson. Accordingly, the Court ADOPTS the Report and Recommendation of the
Magistrate Judge as its opinion and DENIES without an evidentiary hearing the § 2255
motion.

Further, a federal prisoner must obtain a certificate of appealability ("COA") before

appealing the denial of his motion to vacate. This Court "must issue or deny a certificate of

appealability when it enters a final order adverse to the applicant." Rule 11(a) to the Rules
2

Governing Section 2255 Proceedings. This Court should grant a COA only if the prisoner
makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
For the reasons set forth in the Report and Recommendation, and in consideration of the
standards enunciated in Slack v. McDaniel. 529 U.S. 473, 482-84 (2000), Petitioner has

failed to make the requisite showing. Accordingly, the Court DENIES a COA in this case.1
Moreover, because there are no non-frivolous issues to raise on appeal, an appeal would not

be taken in good faith. Accordingly, Petitioner is not entitled to appeal in forma pauperis.
See 28 U.S.C. § 1915(a)(3).

Upon the foregoing, the Court CLOSES this civil action and DIRECTS the Clerk to
enter final judgment in favor of Respondent.

SO ORDERED this /jrday ofJune, 2015, at Augusta, Georgia.

HALL

UNITEDySTATES DISTRICT JUDGE
DISTRICT OF GEORGIA

u'If the court denies a certificate, a party may not appeal the denial but may seek a

certificate from the court of appeals under Federal Rule of Appellate Procedure 22." Rule 11(a)
to the Rules Governing Section 2255 Proceedings.