Wiggins v. USA - 2255

Filing 2

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 9/19/2017. (kw2s, Deputy Clerk)

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, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ANTHONY WIGGINS, * Petitioner, * v. UNITED * STATES OF AMERICr\, * Respondent. * Civ. Action No. RDB-16-2117 Crim. Action No. WDQ-09-0649 * * * * * * * * * * * * * MEMORANDUM OPINION On March 12, 2010, Petitioner Anthony Wiggins ("Petitioner" or "Wiggins") pled guilty to Possession of a Firearm by a Convicted Felon, in violation of 18 U.S.C ~ 922(g)(1) (ECF No. 17.) During Petitioner's prior conviction sentencing hearing, this Court found that Petitioner's for aggravated assault while armed qualified as a "crime of violence" under United States Sentencing Guideline (U.S.S.G.) ~ 4B1.2.(a). As a result, Petitioner was deemed a career offender and under U.S.S.G ~ 2K2.1(a)(4)(a) his sentencing offense level increased by si.x. Petitioner was then sentenced to a term of one-hundred and twenty (120) months imprisonment. Five years later, the Supreme Court in johnson v. United States, _ U.S. _, 135 S. Ct. 2551 (2015) struck down the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C ~ 924 (e)(2)(B)(ii) as unconstitutionally Defender (OFPD) then filed a motion vague. The Office on behalf of Petitioner arguing that because the "Career Offender" of the Federal Public under 28 U.S.C ~ 2255, provision in the Sentencing Guidelines includes 1 , the identical residual clause as that struck down in Johllsoll, it is also void for vagueness. (ECF No. 36.) In 2017, however, the Supreme Court held in Beckles v. UlIited States, _ S. Ct. 886 (2017) that the advisory guidelines Subsequent were not subject U.S. _, 137 to Johllsoll challenges. to that decision, the OFPD informed Petitioner that in light of Beckles it would no longer be able to represent him. On September 15, 2017, the OFPD filed a ]\!otion to Withdraw as Counsel (ECF No. 37), which this Court granted. (ECF No. 38.) Pending before this Court is Petitioner's Motion U.S.c. ~ 2255. (ECF No. 36.) The parties' submissions is necessary. to Correct Sentence Under 28 have been reviewed, and no hearing See Local Rule 105.6 (D. Md. 2016). For the reasons stated herein, Petitioner Wiggins' Motion to Correct Sentence Under 28 U.S.c. ~ 2255 (ECF No. 36) is DENIED. ANALYSIS Petitioner's while sentencing only claim is that under Jol}1/soll, the residual clause that this Court applied Petitioner whether Petitioner's is void for vagueness. Therefore, this Court must determine aggravated assault while armed offense qualifies as a crime of violence under the remaining "enumerated As the OFPD offenses" clause or "force" clause of U.S.S.G ~ 4B 1.2(a). stated in its Motion to Withdraw as Counsel, however, in light of BeddeJ this argument is without merit. As the BeckleJ Court stated, "[b]ecause the advisory Sentencing Guidelines are not subject to a due process vagueness residual clause is not void for vagueness." challenge, ~ 4B 1.2(a)'s 137 S. Ct. at 897. For this reason, Petitioner's pending Motion to Vacate (ECF No. 36) is DENIED. 2 CONCLUSION For the reason stated above, Petitioner Wiggins' Motion to Correct Sentence Under 28 U.S.c. ~ 2255 (ECF No. 36) 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. United StateJ 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. McDaniel, 529 U.S. 473, 484 (2000); Jee a/Jo Miller-EI v. Cockrell, 537 U.S. 322, 336-38 (2003). Because reasonable jurists would not find Wiggins' claims debatable, a certificate of appealability is DENIED. 1\ separate Order follows. Dated: claims September 19, 2017 Richard D. Bennett United States District Judge 3

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