McCarvey v. USA

Filing 24

ORDER DENYING 28 U.S.C. Section 2255 motion, DISMISSING case with prejudice and DECLINING to issue certificate of appealability. Further, the Court DIRECTS the Clerk of the Court to enter judgment. Signed by Judge David R. Herndon on 5/17/17. (klh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RAYMOND MCCARVEY,
Petitioner,
v.

No. 16-0720-DRH

UNITED STATES OF
AMERICA,
Respondent.

MEMORANDUM and ORDER

HERNDON, District Judge:
On June 28, 2016, Raymond McCarvey, by and through counsel Harry
Anderson, filed a motion for corrected or amended sentence pursuant to 28 U.S.C.
§ 2255 (Doc. 1). In his § 2255 motion, McCarvey challenges his designation and
sentence as a career offender under § § 4B1.1 and 4B1.2 of the United States
Sentencing Guidelines based on Johnson v. United States, 135 S.Ct. 2551 (2015).
The Court directed the government to file a response that same day (Doc. 2).
Thereafter, the government filed its response (Doc. 8) and McCarvey filed a reply
(Doc. 10). On October 19, 2016, the Court, after reviewing the pleadings, stayed
this case pending a decision by the United States Supreme Court in Beckles v.
United States, 616 Fed.Appx 415 (11th Cir. 2015), cert. granted, --- U.S. ---, 136
S.Ct. 2510, ---L.E.2d --- (2016) (Doc. 12). On March 6, 2017, the Supreme Court
issued its decision in Beckles v. United States, 137 S.Ct. 866 (2017) (holding
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broadly that advisory sentencing guidelines are not subject to vagueness challenges
under the Due Process Clause, and thus, the reasoning of Johnson does not extend
to § 4B1.2’s residual clause).
In light of Beckles, the Court directed the parties to file status reports (Doc.
17).

The parties did so (Docs. 21 & 22).

Specifically, McCarvey states “The

decision in Beckles, clarifies any split in authorities and has held that the
Guidelines are not subject to vagueness challenge. As Petitioner’s argument relies
on the premise that the guidelines are subject to vagueness challenges there is no
reason to continue to stay this petitioner [sic].

It would seem Beckles is

dispositive of Petitioner’s request for relief.” (Doc. 22, ps. 1-2). Clearly, Beckles
precludes McCarvey’s § 2255 petition and there was no cognizable error in
McCarvey’s sentence.
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, this Court
denies a certificate of appealability in this case. “A certificate of appealability should
issue only when the prisoner shows both “that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling,” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(emphasis added). This court concludes that jurists of reason would not find it
debatable whether petitioner’s motion states a valid claim of the denial of a
constitutional right and also concludes that jurists of reason would not find it
debatable whether this court correctly dismissed with petitioner’s motion based on
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Beckles.
Accordingly, the Court DENIES and DISMISSES with prejudice McCarvey’s
28 U.S.C. § 2255 motion (Doc. 1).
certificate of appealability.

Further, the Court DECLINES to issue a

The Court DIRECTS the Clerk of the Court to enter

judgment in favor of the United States of America and against Raymond McCarvey.
IT IS SO ORDERED.
Signed this 17th day of May, 2017.

Judge Herndon
2017.05.17
18:09:37 -05'00'
United States District Judge

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