Clark v. USA - 2255

Filing 2

MEMORANDUM. Signed by Judge William M Nickerson on 5/17/2017. (c/m)(hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA

*
*
*
*
*

v.
BRIAN LOUIS CLARK
*

*

*

*

*

*

*

*

Criminal No. WMN-10-0726
Civil Action No. WMN-16-1599

*

*

*

*

*

*

*

*

MEMORANDUM
After pleading guilty to a charge of bank robbery,
Petitioner Brian Louis Clark was sentenced on May 5, 2011, to a
term of imprisonment of 120 months.

While the Petitioner was

designated a “Career Offender” under the advisory United States
Sentencing Guidelines (U.S.S.G.), the Court sentenced him below
the advisory guideline range.

Petitioner did not appeal his

conviction or sentence.
On May 20, 2016, the Office of the Federal Public Defender
(OFPD) filed a motion under 28 U.S.C. § 2255 on behalf of
Petitioner under the belief that the Supreme Court’s decision in
Johnson v. United States, 135 S. Ct. 2551 (2015), might impact
the constitutionality of his sentence.

In Johnson, the Supreme

Court struck down the residual clause in the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), as
unconstitutionally vague.

Less than a year later, the Supreme

Court in Welsh v. United States, 136 S. Ct. 1257 (2016), held
that Johnson had announced a new substantive rule of

constitutional law that applies retroactively on collateral
review of ACCA-enhanced sentences.

Because the “Career

Offender” provision in the U.S.S.G. included the identical
residual clause as the ACCA, it was thought that it too would be
held to be void for vagueness.

The Supreme Court, however, on

March 6, 2017, decided in Beckles v. United States, 137 S. Ct.
886 (2017), that the advisory sentencing guidelines were not
subject to such a challenge.
On or about April 12, 2017, after the OFPD informed him
that it would no longer be able to represent him in light of the
Beckles decision, Petitioner filed a “Motion to Proceed Pro Se
and Preserve and Amend Pending 2255 under Mathis.”

ECF No. 25.

On April 24, 2017, the Court issued a Letter Order reserving its
ruling on Petitioner’s motion to amend and granting him 20 days
to either withdraw his § 2255 motion, or file a motion to amend
it setting out the basis for his requested relief.

ECF No. 26.

The Court noted in that Letter Order that the decision
referenced in Petitioner’s motion, Mathis v. United States, 136
S. Ct. 2243 (2016), addressed sentence enhancement under the
ACCA, not the advisory sentencing guidelines.

Furthermore, the

Supreme Court stated clearly in Mathis that it was not setting
out any newly recognized right and, thus, this decision would

2

not permit Petitioner to avoid 28 U.S.C. § 2255(f)’s one year
limitations period for bringing a motion under § 2255.1
On May 4, 2017, Petitioner filed his amended motion under
28 U.S.C. § 2255.

ECF No. 27.

In arguing that his motion is

not time barred, Petitioner cites Molina-Martinez v. United
States, 136 S. Ct. 1338 (2016), for the proposition that “a
miscalculation of a correct guideline range does result in clear
error and Clark is entitled to be resentenced to his correct
guideline range.”

ECF No. 27.

Molina-Martinez, however,

concerned the application of Rule 52 of the Federal Rules of
Civil Procedure and the evidentiary burden facing a defendant in
the context of a direct appeal, not timeliness under § 2255(f).
Petitioner also mentions several other decisions in his
amended motion: United States v. Green, 16-cv-502-pp, 2017 WL
1

28 U.S.C. § 2255(f) provides that a one year period of
limitations applies to motions under § 2255 and begins to run
from the latest of (1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created
by governmental action in violation of the Constitution or laws
of the United States is removed, if the movant was prevented
from making a motion by such governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence.
3

268315 (E.D. Wisc. Feb 3, 2017); United States v. Lowery, CV-161808-PHX-SRB, 2017 U.S. Dist. LEXIS 14765 (D. Ariz. Feb. 1,
2017); United States v. Savage, LA CR 08-00258-VBF, 2017 WL
120008 (C.D. Cal. Jan. 12, 2017); and United States v. Boone,
2:12-cr-162-12l, 2016 WL 3057655 (W.D. Pa. May 31, 2016).

All

of these decisions, however, predate Beckles and were decided
under the belief that the rationale of Johnson would also be
applied to the U.S.S.G.’s career offender provision.

Since

Beckles was decided otherwise, these decisions provide
Petitioner no support.
The Court finds that Petitioner’s § 2255 motion is clearly
time barred.

Petitioner was sentenced on May 5, 2011, and thus

the one year limitations period of § 2255(f) ran on May 5, 2012.
Petitioner has pointed to no newly recognized right, made
retroactively applicable to cases on collateral review, that
would revive his ability to file his motion.
Because the Court will dismiss Petitioner’s motion under §
2255, it must determine whether a certificate of appealability
should issue.

A certificate of appealability shall not issue

absent “a substantial showing of the denial of a constitutional
right.”

28 U.S.C. § 2253(c)(2).

A petitioner satisfies this

standard by demonstrating that reasonable jurists would find
that an assessment of the constitutional claims is debatable and
that any dispositive procedural ruling dismissing such claims is
4

likewise debatable.

Miller–El v. Cockrell, 537 U.S. 322, 336–38

(2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v.
Lee, 252 F.3d 676, 683–84 (4th Cir. 2001).

As reasonable

jurists would not find this Court's dismissal of petitioner's
Section 2255 motion debatable, a certificate of appealability
will not issue.
A separate order consistent with this memorandum will
issue.

_______________/s/________________
William M. Nickerson
Senior United States District Judge

DATED: May 17, 2017

5