Dowling v. United States of America

Filing 15

ORDER denying 9 Motion for Reconsideration ; granting 10 Motion to Amend, Reduce, Review, Adjust, and/or Correct Sentence construed solely as a Motion to Amend; denying 12 Motion for retroactive application. Signed by Judge William T. Moore, Jr. on 5/9/16. (bcw) Modified on 5/9/2016 (jgb).

U.S. r;T;!rJ COURT

s

IN THE UNITED STATES DISTRICT COURTQk
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
CLE
.J.
VERNON DOWLING,

uiv.

AM II: 14
.

(A.

Petitioner,
CASE NOS. CV415-280
CR4 13-17 1

LM

UNITED STATES OF AMERICA,
Respondent.

ORDER

Before

the

Court

is

Petitioner's

Motion

for

Reconsideration (Doc. 9); Motion to Amend, Reduce, Review,
Adjust and/or Correct Sentence (Doc. 10) which the Court
construes solely as a motion to amend; and Motion for
Retroactive Application of Johnson v. United States (Doc.
12) . Petitioner requests reconsideration of this Court's
November 20, 2015 order (Doc. 7) . The Court sees no reason
to disturb its prior order. Accordingly, Petitioner's
Motion for Reconsideration (Doc. 9) is DENIED.
Petitioner also requests to amend his petition and
asks this this Court to review his case on the merits
because Johnson v. United States, 576 U.S. , 135 S. Ct.
2551 (2015), which struck the residual clause in the Armed
Career Criminal Act as vague, has been made retroactive by
the Supreme Court's decision in Welch v. United States,

U. S.

, 136 S. Ct. 1257 (2016). (Doc. 10 at 1; Doc. 12 at

3.) However, Johnson does not apply to Petitioner's case.
Petitioner was sentenced as a career offender under the
Sentencing Guidelines, rather than the Armed Career
Criminal Act. The Eleventh Circuit has held that the
decision in Johnson did not void the residual clause in the
Sentencing Guidelines. United States v. Matchett, 802 F.3d
1185, 1193-94 (11th Cir. 2015) . As a result, Petitioner is
not entitled to relief under Johnson. Accordingly, while
Petitioner's Motion to Amend (Doc. 10) is

GRANTED,

Petitioner's Motion for Retroactive Application (Doc. 12)
is

DENIED.

Petitioner's 28 U.S.C. § 2255 petition as

amended is likewise DENIED.

In addition, Petitioner is not

entitled to a Certificate of Appealability, rendering moot
any request for in forma pauperis status on appeal.
SO ORDERED this

day of May 2016.

WILLIAM T. MOORE, JRV
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA