DELANEY v. USA
Entry Dismissing Motion to Vacate, Set Aside, or Correct Sentence and Denying a Certificate of Appealability (2255) - the petitioner's motion to vacate, set aside or correct sentence isdismissed with prejudice. Judgment consistent with this Ent ry shall now issue and a copy of thisEntry shall be docketed in No. 1:13-cr-00019-TWP-MJD-1.Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing § 2255 proceedings, and 28 U.S.C. § 2253(c), the court fin ds that the petitioner has failed to show that reasonable jurists would find "it debatable whether the petition states a valid claim of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore denies a certificate of appealability. See entry for details. Signed by Judge Tanya Walton Pratt on 11/20/2017. (Copy mailed to Petitioner) (MEJ)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
UNITED STATES OF AMERICA,
Case No. 1:16-cv-01206-TWP-TAB
Entry Dismissing Motion to Vacate, Set Aside, or
Correct Sentence and Denying a Certificate of Appealability
The petitioner filed a motion for relief pursuant to 28 U.S.C. § 2255 arguing that, under
Johnson v. United States, 135 S.Ct. 2551 (2015), his sentence should be vacated because both the
statute under which he was convicted, 18 U.S.C. § 2252(a)(2), and the Sentencing Guidelines
under which he was sentenced, are unconstitutionally vague. Dkt. 1. For the reasons stated below,
the motion for relief is denied.
Johnson held that a portion of the definition of “violent felony” in the Armed Career
Criminal Act (“ACCA”) was unconstitutional, which raised questions about the validity of similar
language throughout the law.
To the extent that petitioner seeks to extend the Johnson holding to 18 U.S.C. § 2252(a)(2),
the Court finds that the holding in Johnson has no application to the petitioner’s conviction or
sentence. The petitioner entered a plea of guilty to distribution of material involving the sexual
exploitation of minors under Section 2252(a)(2), which provides that any person:
knowingly receives, or distributes, any visual depiction using any means or facility
of interstate or foreign commerce or that has been mailed, or has been shipped or
transported in or affecting interstate or foreign commerce, or which contains
materials which have been mailed or so shipped or transported, by any means
including by computer, or knowingly reproduces any visual depiction for
distribution using any means or facility of interstate or foreign commerce or in or
affecting interstate or foreign commerce or through the mails, if—
(A) the producing of such visual depiction involves the use of a minor engaging in
sexually explicit conduct; and
(B) such visual depiction is of such conduct
18 U.S.C. § 2252(a)(2).
Nothing about Johnson impacts the validity of Mr. Delaney’s sentencing. Mr. Delaney is
not a violent felon, and no one ever argued that he was. Mr. Delaney pleaded guilty to knowingly
distributing and receiving, and attempt to distribute and receive, child pornography, by any
means including by computer, in violation of 18 U.S.C. § 2252(a)(2) and was sentenced based on
factors related to that alone. Mr. Delaney also seeks to challenge the Sentencing Guidelines
under Johnson, but the Supreme Court recently held that the Sentencing Guidelines are not
subject to a vagueness challenge under the Due Process Clause. Beckles v. United States, 137 S.
Ct. 886 (2017). In other words, the holding of Johnson does not apply to cases, like Mr.
Delaney’s, challenging guideline calculations.
For these reasons, the petitioner’s motion to vacate, set aside or correct sentence is
dismissed with prejudice. Judgment consistent with this Entry shall now issue and a copy of this
Entry shall be docketed in No. 1:13-cr-00019-TWP-MJD-1.
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing
§ 2255 proceedings, and 28 U.S.C. § 2253(c), the court finds that the petitioner has failed to show
that reasonable jurists would find “it debatable whether the petition states a valid claim of the
denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore
denies a certificate of appealability.
IT IS SO ORDERED.
Electronic distribution to all electronically registered counsel via CM/ECF and by U.S. mail to:
ASHLAND - FCI
ASHLAND FEDERAL CORRECTIONAL INSTITUTION
P.O. BOX 6001
ASHLAND, KY 41105
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