Wiseman v. USA

Filing 16

OPINION MEMORANDUM AND ORDER re: 1 MOTION to Vacate, Set Aside or Correct Sentence filed by Petitioner Floyd Gene Wiseman motion is DENIED. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. Signed by District Judge Henry Edward Autrey on 4/10/17. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
FLOYD GENE WISEMAN,

Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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) Case No. 1:16cv00144HEA
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OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Petitioner’s motion to Vacate, Set Aside or
Correct Sentence [Doc. #1] pursuant to 28 U.S.C. § 2255, wherein he asserts
Johnson v. United States, 135 S. Ct. 2551 (2015) is applicable. The United States
of America has responded to the motion in opposition. Petitioner filed
PETITIONER’S OPENING BRIEF AND MEMORANDUM [Doc. #14] on
January 3, 2017. For the reasons set forth below the Motion will be denied.
Facts and Background
On April 14, 2009, Petitioner entered pleas of guilty to one count of Felon in
Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1) and one count of
Possession With Intent to Distribute Five Grams or More of Cocaine Base in
violation of 21 U.S.C. § 841(a)(1). A Presentence Investigation Report was
prepared and provided to the court. Petitioner appeared for sentencing on October

19, 2009. Petitioner was found to be a career offender and was sentenced to a
within-Guidelines term of imprisonment of 188 months on the controlled substance
charge and 120 months on the firearms charge. The sentences were ordered to be
served concurrently for an aggregate sentence of 188 months.
The Presentence Investigation Report found Petitioner to be a career
offender, as to the drug charge, under U.S.S.G. § 4B1.1(a), resulting in a Total
Offense Level of 31. He was not found to be an Armed Career Criminal for the
firearm charge. The convictions that were classified as career offender predicates
were: (1) a controlled substance offense of Distribution of a Controlled Substance,
(P.S.R. ¶ 35); (2) a crime of violence of Second Degree Assault (P.S.R. ¶ 42). The
Criminal History Category was VI since he was classified as a career offender and
the resulting sentencing range was 188 to 235 months.
On October 22, 2009, Petitioner filed a timely Notice of Appeal. That
appeal was dismissed by the Eighth Circuit Court of Appeals based on the appeal
waiver contained in his plea agreement. This is his first petition pursuant to 28
U.S.C. § 2255.
Petitioner’s Claim
Petitioner claims that he is entitled to relief under the Supreme Court’s
decision in Johnson v. United States, 135 S. Ct. 2551 (2015). He claims that his
prior conviction for Missouri Distribution of a Controlled Substance was
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improperly classified as a “serious drug offense.” His suggestion is that Johnson
should be applied retroactively to his case to reduce his sentence.
Discussion
In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court held
that the residual clause in the definition of a “violent felony” in the Armed Career
Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B) (“ACCA”), is unconstitutionally
vague. The Supreme Court has since determined that Johnson announced a new
substantive rule of constitutional law that applies retroactively on collateral review
in cases involving ACCA-enhanced sentences. United States v. Welch, 136 S. Ct.
1257 (2016).

However, the Court’s holding in Welch that Johnson applies

retroactively in ACCA cases on collateral review does not govern the separate
question of whether Johnson applies retroactively to claims based on the
Sentencing Guidelines.
A Career Offender is determined as follows:
(a) A defendant is a career offender if (1) the defendant was at
least eighteen years old at the time the defendant committed the
instant offense of conviction; (2) the instant offense of conviction
is a felony that is either a crime of violence or a controlled substance
offense; and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance
offense.
U.S.S.G. § 4B1.1(a).
A controlled substance offense is defined by the Sentencing Guidelines as
follows:
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(b) The term “controlled substance offense” means an offense
under federal or state law, punishable by imprisonment for a term
exceeding one year, that prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance (or a counterfeit
substance) with intent to… manufacture, import, export, distribute, or
dispense.
U.S.S.G. § 4B1.2(b).
A defendant must have at least two prior convictions for controlled
substance offenses and/or crimes of violence in order to be classified as a career
offender for a federal controlled substance conviction. Petitioner had two; his
Distribution of a Controlled Substance and his Second Degree Assault felony
convictions.
Petitioner’s prior controlled substance conviction was a “controlled
substance offense” as that term is defined by U.S.S.G. § 4B1.2(b). With that
conviction, and the undisputed crime of violence conviction for Second Degree
Assault, he was properly classified as a career offender.
In Donnell v. United States, 826 F.3d 1014 (8th Cir. 2016), the defendant
applied for leave to file a successive petition based upon Johnson, seeking to
extend Johnson and Welch by urging that the residual clause of the career offender
provisions in the sentencing guidelines were unconstitutionally vague and that this
extension should be applied retroactively to cases on collateral review. Id. The
motion was denied and the Court concluded that “Donnell’s successive motion
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seeks to assert a new right that has not been recognized by the Supreme Court or
made retroactive on collateral review.” Id.
Donnell forecloses the issue raised here by Petitioner, holding that
defendants are not entitled to apply Johnson retroactively to cases on collateral
review. In refusing to allow Donnell permission to file his successive 2255
Petition, the Court noted that “[f]or Donnell’s successive motion to succeed,
therefore, the post-conviction court must announce a second new rule that extends
Johnson to the sentencing guidelines.” Id. at * 1. The Donnell Court declined to
find that this “second new rule” exists and denied Donnell permission to file his
successive § 2255 Petition.
Considering the Court’s holding in Donnell, Petitioner may not apply the
holding of Johnson in a retroactive fashion to attack his career offender sentence
on collateral review. He has not shown that there is a new rule of constitutional
law, made retroactively applicable to cases on collateral review.
Conclusion
Based upon the foregoing analysis, Petitioner has failed to establish he is
entitled to a hearing and has failed to present any basis upon which the Court may
grant relief.
Certificate of Appealablity
The federal statute governing certificates of appealability provides that “[a]
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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).
A substantial showing of the denial of a constitutional right requires that “issues
are debatable among reasonable jurists, a court could resolve the issues differently,
or the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th
Cir. 1997). Based on the record, and the law as discussed herein, the Court finds
that Movant has not made a substantial showing of the denial of a constitutional
right.
Accordingly,
IT IS HEREBY ORDERED that this action is DENIED in all respects.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability.
Dated this 10th day of April, 2017.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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