Scrivner v. USA - 2255

Filing 2

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 9/20/2017. (krs, Deputy Clerk)

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.!'S. r".r:f) r'.... •. rr'''.r v".;uf IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND .. L.: .;., ','1 .,'''n .... 20/7 SEP 2 f AM,,: 23. LEROY SCRIVNER, * Petitioner, .f 1..1.:...111 ..•..•... * v. Civ. Action NO. IIDB-16-18lf1. J1T Crim. Action No. RDB-09-077 * UNITED STATES OF AMERICA, * Respondent. * r:. ; * * * * * * * * * MEMORANDUM OPINION 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 Petitioner's prior convictions sentencing * * * * or "Scrivner") pled guilty to in violation of 18 U .S.C ~ hearing, this Court found that for second degree assault and resisting arrest (arising from the same incident and sentenced together) qualifIed as "crimes of violence" under United States Sentencing offender Guideline (U.S.S.G.) ~ 4B1.2.(a). As a result, Petitioner and under U.S.S.G ~ 21<2.1(a)(2) his sentencing Petitioner was then sentenced to a term was deemed a career offense level increased by four. of one-hundred and rwenty (120) months imprisonment. Six years later, the Supreme Court in jobnJon I'. United Statu, _ U.S. _, 135 S. Ct. 2551 (2015) struck down the residual clause of the Armed Career Criminal .t\ct (ACCA), 18 U.S.C ~ 924(e) (2)(B)(ii) as unconstirutionally Defender (OFPD) 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 1 the identical residual clause as that struck down in johmon, it is also void for vagueness. (ECF No. 60.) In 2017, however, the Supreme Court held in Be,k/es v. United Statu, _ S. Ct. 886 (2017) that the advisory Subsequent guidelines were not subject to that decision, the OFPD informed Petitioner no longer be able to represent him. On September U.S. _, 137 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.) Petitioner 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. ANALYSIS Petitioner's while sentencing whether only claim is that under johnson, the residual clause that this Court applied Petitioner Petitioner's "enumerated prior convictions Therefore, 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 Sentencing is void for vagueness. Guidelines 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)). 2 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. CONCLUSION 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 Proceedings 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 prerequisite" to an 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 denies petitioner's that reasonable debatable right." 28 U.S.c. ~ 2253(c)(2). Where the court motion on its merits, a petitioner satisfies this standard by demonstrating jurists would find the court's assessment 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. Dated: claims September 20, 2017 Richard D. Bennett United States DistrictJudge 3

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