Horton v. USA

Filing 3

ORDER denying 1 Pro Se Motion to Vacate/Set Aside/Correct Sentence (2255) (Criminal Action CR 08-58-LRR-1). A certificate of appealability under28 U.S.C. § 2253 will not issue. The movants 2 Pro Se Motion for Default Judgment is denied. Signed by Judge Linda R Reade on 09/26/2017. (copy w/NEF mailed to Pltf) (jjh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION

THOMAS HORTON,
Movant,

No. C15-0071-LRR
No. CR08-0058-LRR

vs.
UNITED STATES OF AMERICA.

ORDER

This matter appears before the court on the movant’s motion to vacate, set aside or
correct sentence pursuant to 28 U.S.C. § 2255 (civil docket no. 1). The clerk’s office filed
such motion on August 11, 2015. Additionally, the movant filed a motion for default
judgment (civil docket no. 2) on September 7, 2016.
The movant’s motion to vacate, set aside or correct sentence pursuant to 28 U.S.C.
§ 2255 is untimely. See generally 28 U.S.C. § 2255(f). Moreover, relief is unavailable
in light of the law. More specifically, the United States Supreme Court held that the
residual clause of the Armed Career Criminal Act (“ACCA”) defining “violent felony”
was unconstitutionally vague. See Johnson v. United States, ___ U.S. ___, ___, 135 S.
Ct. 2551, 2557 (2015). In Welch v. United States, ___ U.S. ___, 136 S. Ct. 1257 (2016),
the United States Supreme Court made Johnson’s holding retroactive to cases on collateral
review. Here, however, the court did not sentence the movant under the ACCA. Instead,
the court relied on the United States Sentencing Guidelines when sentencing the movant.
And, on March 6, 2017, the United States Supreme Court concluded that the United States
Sentencing Guidelines are not subject to a void for vagueness challenge under the Fifth
Amendment’s Due Process Clause. See Beckles v. United States, ___ U.S. ___, ___, ___

S. Ct. ___, ___, 2017 WL 855781, at *6 (Mar. 6, 2017). Therefore, the movant’s motion
to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (civil docket no. 1)
is denied. As for a certificate of appealability, the movant has not made the requisite
showing. See 28 U.S.C. § 2253(c)(2). Accordingly, a certificate of appealability under
28 U.S.C. § 2253 will not issue. The movant’s motion for default judgment (civil docket
no. 2) is denied.
IT IS SO ORDERED.
DATED this 26th day of September, 2017.

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