Griffith v. United States of America

Filing 10

ORDER REGARDING 28 U.S.C. § 2255 MOTION: The movant's 1 Motion to Vacate/Set Aside/Correct Sentence (2255) (Criminal Action 01-CR-4-LRR) is denied. A certificate of appealability is denied. The movant's 2 Motion for Immediate Release and 3 Motion for Immediate Resentencing are denied. Signed by Judge Linda R Reade on 09/15/2017. (jjh)

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

ANDRE TYRONE GRIFFITH,
Movant,

No. C16-0040-LRR
No. CR01-0004-LRR

vs.
ORDER REGARDING
28 U.S.C. § 2255 MOTION

UNITED STATES OF AMERICA.

I. INTRODUCTION
This matter appears before the court on the movant’s second motion to vacate, set
aside or correct sentence pursuant to 28 U.S.C. § 2255 (civil docket no. 1). The movant
filed such motion on March 21, 2016. In his § 2255 motion, the movant claims that he is
entitled to relief under the recent United States Supreme Court decision in Johnson v.
United States, ___ U.S. ___, 135 S. Ct. 2551 (2015). Also before the court are the
movant’s motion for immediate release on bail pending resolution of second or successive
§ 2255 motion (civil docket no. 2), filed on March 30, 2016, and motion for immediate
resentencing (civil docket no. 3), filed on April 22, 2016. On May 18, 2016, the court
directed the parties to brief the matter. The movant filed a brief in support of relief (civil
docket no. 7). The government filed a resistance in which it disputes that the movant is
entitled to relief under 28 U.S.C. § 2255 (civil docket no. 8).
II. FACTS
A jury found the movant guilty of count 1, possessing stolen firearms in violation
of 18 U.S.C. §§ 922(j) & 924(a)(2), and count 2, being a felon in possession of firearms
in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2). The court ordered a pre-sentence

report to be prepared. The court determined that the movant qualified as an armed career
criminal, and calculated a sentencing guidelines range of 235 to 293 months imprisonment
based on a total adjusted offense level of 33 and a criminal history category VI. On
December 18, 2001, the court noted the seriousness of the movant’s criminal history and
sentenced the movant to a term of 120 months imprisonment on count 1 and a term of 240
months imprisonment on count 2. It ordered the sentences to be served concurrently to
one another.
III. LEGAL STANDARD
A prisoner in custody under sentence of a federal court is able to move the
sentencing court to vacate, set aside or correct a sentence. See 28 U.S.C. § 2255(a). To
obtain relief pursuant to 28 U.S.C. § 2255, a federal prisoner must establish: (1) “that the
sentence was imposed in violation of the Constitution or laws of the United States”;
(2) “that the court was without jurisdiction to impose such sentence”; (3) “that the sentence
was in excess of the maximum authorized by law”; or (4) “[that the judgment or sentence]
is otherwise subject to collateral attack.” Id.; see also Hill v. United States, 368 U.S. 424,
426-27 (1962) (listing four grounds upon which relief under 28 U.S.C. § 2255 may be
claimed); Watson, 493 F.3d at 963 (same); Lee v. United States, 501 F.2d 494, 499-500
(8th Cir. 1974) (clarifying that subject matter jurisdiction exists over enumerated grounds
within the statute); Rule 1 of the Rules Governing Section 2255 Proceedings (specifying
scope of 28 U.S.C. § 2255). If any one of the four grounds is established, the court is
required “to vacate and set aside the judgment and [it is required to] discharge the prisoner
or resentence him or grant a new trial or correct the sentence as may appear appropriate.”
28 U.S.C. § 2255(b).
When enacting 28 U.S.C. § 2255, Congress “intended to afford federal prisoners
a remedy identical in scope to federal habeas corpus.” Sun Bear v. United States, 644
F.3d 700, 704 (8th Cir. 2011) (en banc) (quoting Davis v. United States, 417 U.S. 333,
343 (1974)) (internal quotation mark omitted). Although it appears to be broad, 28 U.S.C.
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§ 2255 does not provide a remedy for “all claimed errors in conviction and sentencing.”
Id. (quoting United States v. Addonizio, 442 U.S. 178, 185 (1979)). Rather, 28 U.S.C.
§ 2255 is intended to redress constitutional and jurisdictional errors and, apart from those
errors, only “fundamental defect[s] which inherently [result] in a complete miscarriage of
justice” and “omission[s] inconsistent with the rudimentary demands of fair procedure.”
Hill, 368 U.S. at 428; see also Sun Bear, 644 F.3d at 704 (clarifying that the scope of
28 U.S.C. § 2255 is severely limited and quoting Hill, 368 U.S. at 428); United States v.
Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) (“Relief under 28 U.S.C. § 2255 is reserved
for transgressions of constitutional rights and for a narrow range of injuries that could not
have been raised for the first time on direct appeal and, if uncorrected, would result in a
complete miscarriage of justice.” (citing Poor Thunder v. United States, 810 F.2d 817, 821
(8th Cir. 1987))). A collateral challenge under 28 U.S.C. § 2255 is not interchangeable
or substitutable for a direct appeal. See United States v. Frady, 456 U.S. 152, 165 (1982)
(making clear that a motion pursuant to 28 U.S.C. § 2255 will not be allowed to do service
for an appeal). Consequently, “an error that may justify reversal on direct appeal will not
necessarily support a collateral attack on a final judgment.” Id. (quoting Addonizio, 442
U.S. at 184).
IV. ANALYSIS
Under the Armed Career Criminal Act (“ACCA”), a defendant convicted of being
a felon in possession of a firearm faces more severe punishment if the defendant has three
or more previous convictions for a “violent felony or a serious drug offense.” 18 U.S.C.
§ 924(e)(1). The ACCA defines a violent felony as any crime punishable by imprisonment
for a term exceeding one year that: (1) “has as an element the use, attempted use, or
threatened use of physical force against the person of another”; (2) “is burglary, arson, or
extortion, involves use of explosives”; or (3) “otherwise involves conduct that presents a
serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). These

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definitions of “violent felony” fall into three respective categories: (1) the elements clause;
(2) the enumerated-crimes clause; and (3) and the residual clause.
In Johnson, the Supreme Court addressed the constitutionality of the residual clause;
the Supreme Court held that “the indeterminacy of the wide-ranging inquiry required by
the residual clause both denies fair notice to the defendant and invites arbitrary
enforcement by judges.” ___ U.S. at ___, 135 S. Ct. at 2557. Shortly after invalidating
the residual clause, the Supreme Court concluded in Welch v. United States that Johnson
announced a substantive rule that applied retroactively on collateral review. ___ U.S. ___,
___, 136 S. Ct. 1257, 1265 (2016). Hence, under Johnson and Welch, a prior conviction
may not be used as a predicate ACCA offense if it falls under 18 U.S.C. § 924(e)(2)(B)’s
invalidated residual clause.
Relying on Johnson and Welch, the parties do not dispute whether the movant has
enough prior qualifying convictions to be subject to an enhanced sentence under 18 U.S.C.
§ 924(e)(1); they agree that the movant does not have three predicate felonies. They,
however, dispute whether relief is available. The movant argues that he is entitled to a
new sentencing hearing because it is unclear whether the court would reimpose the same
sentence because it did not impose a sentence at the top of the mandatory sentencing
guidelines range and the facts at issue in this case are not “extreme.” The government
argues that, even if the movant is no longer subject to the enhanced ACCA statutory range
of punishment, relief is not available under 28 U.S.C. § 2255 because the sentence that the
movant received could be reimposed.
A sentence is illegal for purposes of 28 U.S.C. § 2255 if it was “imposed without,
or in excess of, statutory authority.” Sun Bear, 644 F.3d at 705. Relief under 28 U.S.C.
§ 2255 is inappropriate where the same sentence “could be reimposed were [the movant]
granted the § 2255 relief he requests.” Olten v. United States, 565 F. App’x 558, 561 (8th

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Cir. 2014), cert. denied, ___ U.S. ___, 135 S. Ct. 1893 (2015).1 In Olten, the Eighth
Circuit Court of Appeals addressed whether the defendant should have been sentenced
under the ACCA, which includes a 15-year statutory minimum, and concluded that,
although a sentence under the ACCA was not authorized, no relief was justified because
the same 235 month sentence could be reimposed by ordering consecutive terms of
imprisonment for the two counts of conviction that each had a 10-year statutory maximum.
565 F. App’x at 560-62 (citing Sun Bear, 644 F.3d at 705); see also id., 565 F. App’x at
562 (Kelly, J., concurring) (agreeing that Sun Bear permits speculation as to what a court
might do upon resentencing based solely on what it could do under its statutory authority
and stating that such “approach ‘promotes finality at the expense of justice.’” (quoting Sun
Bear, 644 F.3d at 707 (Melloy, J., dissenting))).
The court finds that Sun Bear conclusively resolves the movant’s § 2255 motion
because a sentence does not constitute a miscarriage of justice if it is within the statutory
maximum term of imprisonment. See generally Sun Bear, 644 F.3d at 705-06; cf. Gray
v. United States, 833 F.3d 919, 924 (8th Cir. 2016) (holding that movant was entitled to
a new sentencing hearing because his “sentence resulted from a conviction for the wrong
crime” and actual crime committed is a central component for calculating the correct
sentence); Ragland v. United States, 784 F.3d 1213, 1214 (8th Cir. 2015) (determining
that claim under Burrage v. United States, 571 U.S. ___, ___, 134 S. Ct. 881, 892 (2014),
is cognizable because the validity of movant’s conviction, not just his sentence, is called
into question). The movant is required to show that, absent the court’s improper reliance
on the ACCA, the court could not have imposed 240 months imprisonment as his total

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An unpublished opinion like Olten may be cited when there is no other relevant
authority. See Local Rule of the Eighth Circuit 32.1A (“Parties may also cite an
unpublished opinion of this court if the opinion has persuasive value on a material issue
and no published opinion of this court or another court would serve as well.”); see also
Fed. R. App. P. 32.1 (stating that a court may not prohibit or restrict citation to federal
opinions).
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punishment. See Olten, 565 F. App’x at 560-62; see also Sun Bear, 644 F.3d at 705
(explaining that movant already had been afforded fair procedure and it is a “basic
principle that, in sentencing, a miscarriage of justice cognizable under § 2255 occurs when
the sentence is in excess of that authorized by law” (citing Addonizio, 442 U.S. at 184));
Martin v. United States, 150 F. Supp. 3d 1047, 1050 (W.D. Mo. 2015) (applying Olten).
This, of course, the movant cannot do since the court could have imposed legal sentences
on the counts of conviction and used consecutive sentences (rather than concurrent) to
achieve the same “total punishment” under USSG §5G1.2(d) and/or 18 U.S.C. § 3584.
In sum, the denial of relief in this proceeding is dictated by prior precedent of the Eighth
Circuit Court of Appeals.
V. CERTIFICATE OF APPEALABILITY
In a 28 U.S.C. § 2255 proceeding before a district judge, the final order is subject
to review, on appeal, by the court of appeals for the circuit in which the proceeding is
held. See 28 U.S.C. § 2253(a). Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals. See 28 U.S.C. §
2253(c)(1)(A). A district court possesses the authority to issue certificates of appealability
under 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b). See Tiedeman v. Benson, 122 F.3d
518, 522 (8th Cir. 1997). Under 28 U.S.C. § 2253(c)(2), a certificate of appealability
may issue only if a movant has made a substantial showing of the denial of a constitutional
right. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Garrett v. United States,
211 F.3d 1075, 1076-77 (8th Cir. 2000); Carter v. Hopkins, 151 F.3d 872, 873-74 (8th
Cir. 1998); Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997); Tiedeman, 122 F.3d at 523.
To make such a showing, the issues must be debatable among reasonable jurists, a court
could resolve the issues differently, or the issues deserve further proceedings. Cox, 133
F.3d at 569 (citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994)); see also MillerEl, 537 U.S. at 335-36 (reiterating standard).

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Courts reject constitutional claims either on the merits or on procedural grounds.
“‘[W]here a district court has rejected the constitutional claims on the merits, the showing
required to satisfy [28 U.S.C.] § 2253(c) is straightforward: the [movant] must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.’” Miller-El, 537 U.S. at 338 (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). When a federal habeas petition is dismissed on
procedural grounds without reaching the underlying constitutional claim, “the [movant
must show], at least, 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.” See Slack,
529 U.S. at 484.
Having thoroughly reviewed the record in this case, the court finds that the movant
failed to make the requisite “substantial showing” with respect to the claim that he raised
in his motion pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(2); Fed. R. App.
P. 22(b). Because he does not present a question of substance for appellate review, there
is no reason to grant a certificate of appealability.

Accordingly, a certificate of

appealability shall be denied. If he desires further review of his motion pursuant to 28
U.S.C. § 2255, the movant may request issuance of the certificate of appealability by a
circuit judge of the Eighth Circuit Court of Appeals in accordance with Tiedeman, 122
F.3d at 520-22.
VI. CONCLUSION
For the reasons discussed above, the movant is not serving a sentence in excess of
that authorized by law. Accordingly, the movant’s motion under 28 U.S.C. § 2255 shall
be denied. Additionally, a certificate of appealability shall not issue. Lastly, given the
court’s resolution of the movant’s motion under 28 U.S.C. § 2255, there is no basis to
release the movant or resentence him. Accordingly, the movant’s motion for immediate

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release on bail pending resolution of second or successive § 2255 motion and motion for
immediate resentencing shall be denied.
IT IS THEREFORE ORDERED:
(1)

The movant’s motion pursuant to 28 U.S.C. § 2255 (civil docket no. 1) is
denied.

(2)

A certificate of appealability is denied.

(3)

The movant’s motion for immediate release on bail pending resolution of
second or successive § 2255 motion (civil docket no. 2) and motion for
immediate resentencing (civil docket no. 3) are denied.

DATED this 15th day of September, 2017.

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