Zirkelbach v. United States of America
ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255) (Criminal Action 13-CR-1001-LRR) and denying 4 Pro Se Motion to Amend. A certificate of appealability under 28 U.S.C. § 2253 will not issue. Signed by Judge Linda R Reade on 10/02/2017. (copy w/NEF mailed to Petitioner) (jjh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
RORY LEE ZIRKELBACH,
UNITED STATES OF AMERICA.
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) and motion to amend
(docket no. 4).
The movant’s motion to vacate, set aside or correct sentence pursuant to 28 U.S.C.
§ 2255 and motion to amend are 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 recently 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 were 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 and motion to amend are denied.1 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.
IT IS SO ORDERED.
DATED this 2nd day of October, 2017.
The court notes that the movant’s reliance on Mathis v. United States, ___ U.S.
___, 136 S. Ct. 2243 (2016), which reiterated the methodology for determining whether
a prior conviction qualifies as a violent felony for purposes of the ACCA, is unavailing
because the Supreme Court did not recognize a new right that is retroactively applicable
on collateral review. Cf. Headbird v. United States, 813 F.3d 1092, 1097 (8th Cir. 2016)
(upholding dismissal under § 2255(f) because Descamps v. United States, ___ U.S. ___,
133 S. Ct. 2276 (2013), did not involve “newly recognized” right).
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?