Combs v. USA

Filing 8

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion of Walter Combs to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 is DENIED, and this action is DISMISSED. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. An Order of Dismissal will be filed separately. Signed by District Judge John A. Ross on 1/31/17. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WALTER COMBS,
Movant,

v.
UNITED STATES OF AMERICA,
Respondent,

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No. 4:16-CV-1799 JAR

MEMORANDUM AND ORDER

This matter is before the Court on the motion of Walter Combs to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255. After review the motion is denied.
Movant was convicted by a jury of distribution of cocaine and possession of a firearm in
furtherance of a drug-trafficking crime. United States v. Combs, No. 4:13-CR-391 JAR. The
Court sentenced him to 186 months' imprisonment. The Court of Appeals for the Eighth Circuit
affirmed. United States v. Combs, 827 F.3d 790 (8th Cir. 2016).
Movant argues that he is entitled to relief under Johnson v. United States, 135 S.Ct. 2551
(2015), in which the Court held that the "residual clause" of the Armed Career Criminal Act
("the ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. The ACCA enhances
the punishment for firearms offenses under 18 U.S.C. § 922(g) when the defendant has at least
three prior convictions for a "serious drug offense" or a "violent felony." The term "violent
felony" is defined in the ACCA as felony offense that "(1) has as an element tl,t~ use, attempted
use, or threatened use of physical force against the person of another, or (ii) is burglary, arson, or
extortion, involves the use of explosives, or otherwise involves conduct that presents a serious

potential risk of physical injury to another." 18 U.S.C. § 924(e)(B) (emphasis added). The

"otherwise involves" language of the ACCA is the residual clause that the Supreme Court found
unconstitutional. Johnson, 135 S.Ct. at 2563. The Career Offender Guideline contains a similar
residual clause. See U.S.S.G. § 4Bl.2(a)(2).
Johnson does not provide movant with relief because his sentence was not enhanced

under the ACCA or the Guidelines. Therefore, the motion must be denied. See 28 U.S.C.
§ 2255, Rule 4.

Finally, movant has failed to demonstrate that jurists of reason would find it debatable
whether he is entitled to relief. Thus, the Court will not issue a certificate of appealability. 28
U.S.C. § 2253(c).
Accordingly,

IT IS HEREBY ORDERED that the motion of Walter Combs to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255 is DENIED, and this action is DISMISSED.
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.

An Order of Dismissal will be filed separately.
Dated this 31st day of January, 2017.

JO

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. ROSS
DSTATES DISTRICT JUDGE