Stevenson v. USA - 2255

Filing 2

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 9/20/2017. (kw2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF Mr\RYLAND
KEITH STEVENSON,

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Petitioner,

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v.

UNITED STATES OF AMERICA,

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Respondent.

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Civ. Action No. RDB-16-2306
Crim. Action No. RDB-08-588

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On November

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MEMORANDUM

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13, 2009, Petitioner Keith Stevenson ("Petitioner"

pled guilty to possession

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OPINION
or "Stevenson")

with intent to distribute cocaine, in violation of 21 U.S.c. ~

841(a)(1) (ECF No. 39.) During Petitioner's

sentencing hearing, this Court found that

Petitioner's prior convictions for attempted robbery with a dangerous weapon and robbery
with a dangerous weapon qualified as "crimes of violence" under United States Sentencing
Guideline (U.S.S.G.) ~ 4B1.2.(a). As a result, Petitioner was deemed a career offender and
was then sentenced to a term of one-hundred and twenry (120) months imprisonment.
Six years later, the Supreme Court in johnJon I'. United Statu, _

U.S. _,

135 S. Ct.

2551 (2015) struck down the residual clause of the Armed Career Criminal r\ct (ACCA), 18
U.S.c.

~ 924(e)(2)(B)(ii) as unconstitutionally

Defender

(OFPD)

vague. The Office of the Federal Public

then fJ.!ed a motion on behalf of Petitioner under 28 U.S.c. ~ 2255,

arguing that because the "Career Offender" provision in the Sentencing Guidelines includes
the identical residual clause as that struck down in johnJon, it is also void for vagueness. (ECF
No. 67.)

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In 2017, however, the Supreme Court held in Beckles
S. Ct. 886 (2017) that the advisory guidelines
Subsequent

IJ.

United States, _

were not subject

U.S. _,

137

to Johnson challenges.

to that decision, the OFPD informed Petitioner that in light of Beckles it would

no longer be able to represent

him. On September

18, 2017, the OFPD

filed a Motion to

Withdraw as Counsel (ECF No. 69), which this Court granted. (ECF No. 70.)
Petitioner has since been released from custody.! However, still pending before this
Court is Petitioner's

Motion to Correct Sentence Under 28 U.S.c. ~ 2255. (ECF No. 67.)

The parties' submissions
105.6 (D. Md. 2016).

have been reviewed, and no hearing is necessary.
For the reasons

stated herein, Petitioner

See Local Rule

Stevenson's

Motion

to

Correct Sentence Under 28 U.S.c. ~ 2255 (ECF No. 67) is DENIED.

ANALYSIS
Petitioner's
while sentencing

only claim is that under Johnson, the residual clause that this Court applied
Petitioner

whether Petitioner's
robbery

prior convictions

with a dangerous

"enumerated

is void for vagueness.

weapon

for attempted

this Court must determine

robbery with a dangerous weapon and

quality as crimes of violence

under

the remaining

offenses" clause or "force" clause of U.S.S.G ~ 4131.2(a).

As the OFPD

stated in its !\lotion to Withdraw

Betides this argument is without merit.
Sentencing

Therefore,

Guidelines

l\S

as Counsel, however,

in light of

the Becklu Court stated, "[b]ecause the advisory

are not subject to a due process vagueness challenge, ~ 4B1.2(a)'s

I Although Petitioner is no longer incarcerated, his Section 2255 :t\fotion to Correct Sentence is still ripe for
adjudication because he remains on supervised release. The United States Court of Appeals for the Fourth

Circuit has made clear in Uniled Siaies

I'. Pregenl, 190 F.3d 279, 283 (4th

Cit. 1999) that "[aJ prisoner on

supervised release is considered to be 'in custody' for purposes of a ~ 2255 motion" (citing Ala/eng v. Cook, 4-90

U.S. 488, 491 (1989)).

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residual clause is not void for vagueness."

137 S. Ct. at 897. For this reason, Petitioner's

pending Motion to Vacate (ECF No. 67) is DENIED.

CONCLUSION
For the reason stated above, Petitioner

Stevenson's

Motion

to Correct

Sentence

Under 28 U.S.c. ~ 2255 (ECF No. 67) 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.

A certificate of appealability is a "jurisdictional

prerequisite"

to an

appeal from the court's earlier order. United States v. Hadden, 475 F.3d 652, 659 (4th Cir.
2007). A 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

claims

or wrong. See Slack v. McDaniel, 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 Stevenson's
claims debatable, a certificate of appealability is DENIED.
A separate Order follows.

Dated:

September 20, 2017

Richard D. Bennett
United States DistrictJudge

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