Chisholm v. United States Of America

Filing 11

REPORT AND RECOMMENDATIONS Denying re 1 MOTION to Vacate under 28 U.S.C. 2255 as to Leroy Chisholm. Objections to R&R due by 7/26/2017. Signed by Magistrate Judge G. R. Smith on 7/12/17. (jrb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
LEROY CHISHOLM,

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Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

1

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FILED
Scott L. Poff, Clerk
United States District Court

By James Burrell at 1:43 pm, Jul 12, 2017

CV417-125
CR413-007

REPORT AND RECOMMENDATION
Guilty-plea convicted of conspiracy to possess with intent to
distribute cocaine, crack cocaine, and marijuana in violation of 21 U.S.C.
§§ 841(b)(1)(C) & 846, Leroy Chisholm seeks to exploit the Supreme
Court’s decision in Mathis v. United States, 579 U.S. __, 136 S. Ct. 2243
(2016),2 to neutralize his enhanced sentence. Doc. 1; see CR413-007,

1

As his 28 U.S.C. §2241 petition has been properly recharacterized as a 28 U.S.C.
§ 2255 motion to vacate his sentence, Warden Merlak is not an appropriate
respondent and the United States of America must be substituted in.
2

Mathis merely elucidated the holdings and analyses in Johnson v. United States,
576 U.S. __, 135 S. Ct. 2551 (2015) and Descamps v. United States, 133 S.Ct. 2276
(2013), to explain how courts must divine whether a criminal defendant’s prior
convictions counted as “violent felonies” under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e)(2)(B). Mathis, 136 S. Ct. 2245-46 (where a statute defines
only one crime, with one set of elements but alternative factual means by those
elements may be satisfied, it is broader than the elements of the “generic” version of

docs. 522 (plea agreement), 523 (judgment); 674 & 687 (Eleventh Circuit
opinion and mandate affirming judgment).

He believes that Mathis,

Johnson, Descamps, and a Fifth Circuit case (United States v. Hinkle,
832 F.3d 569 (5th Cir. 2016)) render the Sentencing Guidelines-based
enhancement of his sentence “unconstitutional.” Doc. 1 at 3-11 (arguing
that his two prior convictions for violations of O.C.G.A. § 16-13-30 for
possession of a controlled substance is “broader” than the definition of a
controlled substance offense as defined by U.S.S.G. § 4B1.2 and thus
cannot be considered enhancement-triggering offenses post-Mathis and

Hinkle). Preliminary § 2255 Rule 4 review shows that his motion must
be DENIED.
Chisholm was sentenced as a “career offender” under the
Sentencing Guidelines -- not the ACCA.

Presentence Investigative

Report (PSR) at ¶¶ 20 (determining he qualified as a “career offender”
under U.S.S.G. § 4B1.1 based on prior felony controlled substances

the crime and cannot be utilized in an ACCA enhancement). It did not announce any
new rule of law, and (just like Johnson), is inapplicable to Sentencing Guidelinesbased enhancements. See In re: Antonio Woodley, No. 17-12594-J at *2 (11th Cir.
July 3, 2017) (Mathis did not establish a new rule of constitutional law, it only
clarified existing law); Smith v. United States, 2017 WL 1745057 at *1 (S.D. Ga. May
3, 2017) (Mathis does not undo Sentencing Guidelines enhancements -- it only serves
as an explanatory tool to analyze underlying convictions per the modified categorical
approach).
2

offenses).3 And Johnson, which invalidated the ACCA residual clause,

does not extend to the identical language of the Sentencing Guidelines’
residual clause. Beckles v. United States, __ U.S. __, 2017 WL 855781
(Mar. 6, 2017); see also United States v. Matchett, 802 F.3d 1185 (11th
Cir. 2015) (same). Thus, Mathis and Descamps (which only clarified the
proper approach to be utilized in evaluating predicate crimes of
conviction for ACCA-enhancements, both pre- and post-Johnson) have
zero impact on movant’s sentencing. Chisholm has no claim for relief.
Leroy Chisholm’s 28 U.S.C. § 2255 motion should be DENIED.
For the reasons set forth above, it is plain that he raises no substantial
claim of deprivation of a constitutional right. Accordingly, no certificate
of appealability should issue. 28 U.S.C. § 2253; Fed. R. App. P. 22(b);
Rule 11(a) of the Rules Governing Habeas Corpus Cases Under 28
U.S.C. § 2255 (“The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.”).
Any motion for leave to appeal in forma pauperis therefore is moot.

3

See PSR at ¶¶ 26 (possession with intent to distribute (two counts, for both cocaine
and marijuana)) & 27 (sale of a controlled substance (cocaine)); see also doc. 523
(enhanced sentence for 151 months’ incarceration).
3

This Report and Recommendation (R&R) is submitted to the district
judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this
Court’s Local Rule 72.3. Within 14 days of service, any party may file
written objections to this R&R with the Court and serve a copy on all
parties.

The document should be captioned “Objections to Magistrate

Judge’s Report and Recommendations.” Any request for additional time to
file objections should be filed with the Clerk for consideration by the
assigned district judge.
After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge.

The

district

and

judge

will

review

the

magistrate

judge’s

recommendation pursuant to 28 U.S.C. § 636(b)(1)(C).

findings

The parties are

advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp., 648
F. App’x 787, 790 (11th Cir. 2016); Mitchell v. U.S., 612 F. App’x 542, 545
(11th Cir. 2015).
SO REPORTED AND RECOMMENDED, this 12th
2017.

4

day of July,