Scrivner v. USA - 2255
MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 9/20/2017. (krs, Deputy Clerk)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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Civ. Action NO. IIDB-16-18lf1. J1T
Crim. Action No. RDB-09-077
STATES OF AMERICA,
On July 30, 2009, Petitioner Leroy Scrivner ("Petitioner"
being a felon in possession
of a fIrearm and ammunition,
922(g)(1). (ECF No. 25.) During Petitioner's
or "Scrivner") pled guilty to
of 18 U .S.C ~
hearing, this Court
for second degree assault and resisting arrest (arising from the
same incident and sentenced together) qualifIed as "crimes of violence" under United States
(U.S.S.G.) ~ 4B1.2.(a). As a result, Petitioner
and under U.S.S.G ~ 21<2.1(a)(2) his sentencing
to a term
was deemed a career
offense level increased by four.
Six years later, the Supreme Court in jobnJon
United Statu, _
135 S. Ct.
2551 (2015) struck down the residual clause of the Armed Career Criminal .t\ct (ACCA), 18
~ 924(e) (2)(B)(ii) as unconstirutionally
vague. The OffIce of the Federal Public
then fIled a motion on behalf of Petitioner
arguing that because the "Career Offender"
under 28 U.S.C ~ 2255,
provision in the Sentencing Guidelines includes
the identical residual clause as that struck down in johmon, it is also void for vagueness. (ECF
In 2017, however, the Supreme Court held in Be,k/es v. United Statu, _
S. Ct. 886 (2017) that the advisory
were not subject
to that decision, the OFPD informed Petitioner
no longer be able to represent
him. On September
to johnson challenges.
that in light of Be,k/es it would
18, 2017, the OFPD
filed a Motion to
Withdraw as Counsel (ECF No. 62), which this Court granted. (ECF No. 63.)
has since been released from custody.l However, still pending before this
Court is Petitioner's
Motion to Correct Sentence Under 28 U.S.c. ~ 2255. (ECF No. 60.)
The parties' submissions
105.6 (D. Md. 2016).
have been reviewed, and no hearing is necessary.
See Local Rule
For the reasons stated herein, Petitioner Leroy Scrivner's Motion to
Correct Sentence Under 28 U.S.c. ~ 2255 (ECF No. 60) is DENIED.
only claim is that under johnson, the residual clause that this Court applied
this Court must detennine
qualify as crimes of violence under the remaining
offenses" clause or "force" clause of U.S.S.G ~ 4B1.2(a).
As the OFPD
Be,k/es this argument
is void for vagueness.
stated in its Motion to Withdraw
as Counsel, however, in light of
is without merit. As the Be,k/es Court stated, "[b]ecause the advisory
are not subject to a due process vagueness
challenge, ~ 4B 1.2(a)'s
1 Although Petitioner is no longer incarcerated, his Section 2255 ~lotion to Correct Sentence is still ripe for
adjudication because he remains on supervised release. The United States Court of Appeals for the Fourth
Circuil has made clear in Uniled Sial,," v. Pregenl, 190 F.3d 279, 283 (4th Cir. 1999) that "(aJ prisoner on
supervised release is considered to be 'in custody' for purposes of a ~ 2255 motion" (citing /'via/engv. Cook, 490
U.S. 488,491 (1989)).
residual clause is not void for vagueness."
137 S. Ct. at 897. For this reason, Petitioner's
pending Motion to Vacate (ECF No. 60) is DENIED.
For the reason stated above, Petitioner Leroy Scrivner's l\!otion to Correct Sentence
Under 28 U.S.c. ~ 2255 (ECF No. 60) is DENIED.
Pursuant to Rule 11 (a) of the Rules Governing
under 28 U.S.c. ~ 2255,
the court is required to issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.
1\ certificate of appealability is a "jurisdictional
appeal from the court's earlier order. Ul1ited States v. Hadden, 475 F.3d 652, 659 (4th Cir.
2007). 1\ certificate of appealability may issue "only if the applicant has made a substantial
showing of the denial of a constitutional
right." 28 U.S.c. ~ 2253(c)(2). Where the court
motion on its merits, a petitioner satisfies this standard by demonstrating
find the court's
of the constitutional
or wrong. See Slack v. M,Dal1iel, 529 U.S. 473, 484 (2000); see also Miller-EI v.
Cockrell, 537 U.S. 322, 336-38 (2003).
Because reasonable jurists would not find Scrivner's
claims debatable, a certificate of appealability is DENIED.
1\ separate Order follows.
September 20, 2017
Richard D. Bennett
United States DistrictJudge
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