Whittington v. USA
Order denying 1 Petitioner's Motion to Vacate/Set Aside/Correct Sentence (2255) and 9 Petitioner's Amended Motion to Vacate/Set Aside/Correct Sentence (2255). The Court declines to issue a certificate of appealability. The Government's Motion to lift stay and Deny Pending 28 U.S.C. § 2255 Motion on the Merits 21 is granted. Signed on 5/24/17 by Chief District Judge Greg Kays. (Strodtman, Tracy)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
(Crim. No. 4:13-CR-00181-DGK-1)
ORDER DENYING MOTION TO CORRECT SENTENCE
Petitioner Byron Whittington (“Petitioner”) pled guilty to one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and the Court
sentenced him to 102 months’ imprisonment.
Now before the Court are Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence
(Doc. 1) under 28 U.S.C. § 2255, Amended Motion to Vacate (Doc. 9), and Motion to Dismiss
Petition Without Prejudice (Doc. 20). The Government has also filed a Motion to Lift Stay and
Deny Pending 28 U.S.C. § 2255 Motion on the Merits (Doc. 21). Because the Supreme Court
recently rejected Petitioner’s argument in Beckles v. United States, 137 S. Ct. 886 (2017), his §
2255 motion, amended § 2255 motion, and motion to dismiss without prejudice are DENIED.
The Government’s motion to deny Petitioner’s § 2255 motion is GRANTED.
On September 11, 2013, Petitioner pled guilty to one count of being a felon in possession
of a firearm, pursuant to a written plea agreement. In this agreement, Petitioner waived his right
The facts in this section derive from: (1) the criminal case record; and (2) the allegations in Petitioner’s motion,
taken as true except where they contradict the record. Because the facts in this light do not entitle Petitioner to
relief, the Court denies him an evidentiary hearing and rules on the facts in the record. See Thomas v. United States,
737 F.3d 1202, 1206 (8th Cir. 2013) (citing 28 U.S.C. § 2255(b)); Rules Governing Section 2255 Proceedings, Rule
to attack his sentence, directly or collaterally, on any ground except claims of ineffective
assistance of counsel, prosecutorial misconduct, or an illegal sentence. Plea Agrmnt. ¶ 15 (Crim.
Doc. 26). The agreement defines an “illegal sentence” as one “imposed in excess of the statutory
maximum,” and states the term specifically “does not include less serious sentencing errors, such
as a misapplication of the Sentencing Guidelines, an abuse of discretion, or the imposition of an
unreasonable sentence.” Id. (emphasis in original). Petitioner does not challenge the validity of
his plea agreement and this waiver.
On January 30, 2014, the Court sentenced him to 102 months’ imprisonment under the
United States Sentencing Guidelines (the “Guidelines”). In calculating Petitioner’s Guidelines
range, the Court found he was eligible for an enhanced base offense level because he had two
prior convictions that qualified as “crimes of violence.” Specifically, the Court adopted the
Presentence Investigation Report (“PSR”) finding that Petitioner’s prior Missouri convictions for
second-degree burglary qualified him for an enhancement under Guidelines § 2K2.1(a)(1). PSR
¶¶ 13, 36, 37 (Crim. Doc. 27). This ultimately resulted in an advisory Guideline range of 120 to
150 months’ imprisonment. Id. ¶ 77. But, because the statutory maximum term of imprisonment
for Petitioner’s crime is 10 years, this recommendation was reduced to 120 months. Id. The
Court sentenced Petitioner below this recommendation, and he did not appeal.
Petitioner filed his first § 2255 motion on February 22, 2016, and filed an amended
motion on April 8, 2016. The Court withheld ruling while awaiting the Supreme Court’s opinion
in Beckles. That decision was handed down on March 6, 2017.
The Court will not dismiss Petitioner’s § 2255 motion without prejudice, and will
consider the merits of his motion.
The Court first addresses Petitioner’s motion to dismiss this matter without prejudice so
he may file another motion pursuant to § 2255 without it being considered a second or successive
petition requiring the permission of the Eighth Circuit to proceed (Doc. 20). The Government
opposes this motion, arguing the Court “should not allow a state or federal prisoner to voluntarily
dismiss a post-conviction motion to avoid application of an impending or recently issued adverse
decision.” Gov’t Mot. at 3 (Doc. 21). Even if dismissing this motion without prejudice could
allow Petitioner to file another § 2255 motion without permission from the Eighth Circuit, cf.
Felder v. McVicar, 113 F.3d 696, 698 (7th Cir. 1997) (“[A] petitioner for habeas corpus cannot
be permitted to thwart the limitations on the filing of second or successive motions by
withdrawing his first petition as soon as it becomes evident that the district court is going to
dismiss it on the merits.”); Thai v. United States, 391 F.3d 491, 495 (2d Cir. 2004) (“[I]f a
petitioner clearly concedes upon withdrawal of a § 2255 petition that the petition lacks merit, the
withdrawal is akin to a dismissal on the merits and subsequent petitions will count as successive .
. . .”), the Court will not acquiesce in this sort of gamesmanship. Petitioner’s motion to dismiss
without prejudice is denied, and the Court will consider the merits of his § 2255 motion.
Petitioner’s enhanced base level sentence did not deprive him of due process of
A district court may vacate a sentence if it “was imposed in violation of the Constitution
or laws of the United States.” 28 U.S.C. § 2255(a). A § 2255 motion “is not a substitute for a
direct appeal, and is not the proper way to complain about simple . . . errors.” Anderson v.
United States, 25 F.3d 704, 706 (8th Cir. 1994) (internal citation omitted).
Petitioner argues his prior convictions for second-degree burglary no longer qualify as
crimes of violence in the wake of Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme
Court decision invalidating the Armed Career Criminal Act’s (“ACCA”) residual clause, 18
U.S.C. § 924(e)(2)(B)(ii).
Petitioner contends that under Johnson, the Court’s Guidelines
calculation violated due process.
This argument is without merit. Petitioner was not sentenced under the ACCA, but
instead under a similarly-worded provision in the Guidelines. See U.S.S.G. § 4B1.2. The
Guidelines are not subject to a void-for-vagueness challenge under the Due Process Clause like
the ACCA’s residual clause was in Johnson. Beckles, 137 S. Ct. at 896. Unlike the ACCA, the
Guidelines do not fix the permissible statutory range of punishment. Id. at 894. Instead, they
merely guide the exercise of a sentencing court’s discretion in choosing an appropriate sentence
within the permissible range. Id. Petitioner was sentenced to a term of imprisonment that was
not in excess of the statutory maximum and, therefore, not an illegal sentence.
Because his claim is based on the same vagueness challenge the Supreme Court rejected
in Beckles, it is denied.2 Any other grounds for relief are time-barred. 28 U.S.C. § 2255(f) (“A
1-year period of limitation shall apply to [§ 2255 motions]. The limitation period shall run from
the latest of . . . the date on which the judgment of conviction becomes final; [or] the date on
which the right asserted was initially recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made retroactively applicable to cases on collateral
review . . . .”).
Indeed, Petitioner admitted that “[i]f Beckles holds that Johnson is not retroactively applicable to guidelines cases
on collateral review, [his] case would necessarily be terminated.” Pet.’s Mot. to Stay at 2 (Doc. 15). Here, there is
nothing to be applied retroactively because the Supreme Court held that the Guidelines are not subject to a void-forvagueness challenge. Beckles, 137 S. Ct. 886.
For these reasons, Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence (Doc. 1),
Amended Motion to Vacate (Doc. 9), and Motion to Dismiss Case Without Prejudice (Doc. 20)
are DENIED, and the Court declines to issue a certificate of appealability. The Government’s
Motion to Lift Stay and Deny Pending 28 U.S.C. § 2255 Motion on the Merits (Doc. 21) is
IT IS SO ORDERED.
Date: May 24, 2017
/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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