Talley v. USA

Filing 11

ORDER: 1. The September 30, 2016 stay of proceedings is lifted; 2. The Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 1 is DENIED; and 3. Movant is DENIED a certificate of appealability. Signed on 7/27/2017 by District Judge Roseann Ketchmark. (Russell, Elizabeth)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
DONALD B. TALLEY,

)
)
)
)
)
)
)
)
)

Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

Case No. 16-03266-CV-S-RK
Crim. No. 05-03114-01-CR-S-RK

ORDER
Before the Court is the Motion to Vacate, Set Aside, or Correct Sentence under
28 U.S.C. § 2255 (doc. 1) filed by Movant Donald B. Talley pro se on June 28, 2016. Movant
asks the Court to vacate his sentence based on the Supreme Court’s decision in Johnson v.
United States, 135 S. Ct. 2251 (2015). Pursuant to the Court’s Standing Order (doc. 2), the
Federal Public Defender was appointed to represent Movant. On September 30, 2016, on
Movant’s request, the Court stayed the action, pending the Supreme Court’s resolution of the
questions presented in Beckles v. United States, 137 S. Ct. 886 (2017). On March 6, 2017, the
Supreme Court issued its opinion in Beckles. Thereafter, on April 17, 2017, the Government
filed Suggestions in Opposition (doc. 9), moving for an order: (1) lifting the stay; (2) denying on
the merits the 28 U.S.C. § 2255 Motion; and (3) denying Movant a certificate of appealability.
To date, Movant has not filed any reply suggestions.
First, the Supreme Court has resolved the questions presented in Beckles. 137 S. Ct. at
895 (holding that “the advisory Sentencing Guidelines are not subject to a vagueness challenge
under the Due Process Clause and that § 4B1.2(a)’s residual clause is not void for vagueness”).
Accordingly, the stay of this action will be lifted.
Next, the Court finds the Beckles decision provides no basis for relief to Movant. In his
Motion to Stay, Movant asserted that he “was not sentenced under the Armed Career Criminal
Act but, rather, challenges his sentence which was based on the United States Sentencing
Guidelines.” (Doc. 4 at 1.) Movant further conceded that “if Beckles holds that Johnson is not
retroactively applicable to guidelines cases on collateral review, [then his] case would
necessarily be terminated.” (Id. at 2.) Beckles has so held, and as a result, the Court agrees with
the Government’s contention that the 28 U.S.C. § 2255 Motion should be denied. In addition,

because Movant has made no substantial showing of the denial of a constitutional right, the
Court will not issue a certificate of appealability.
It is therefore ORDERED that:
1. The September 30, 2016 stay of proceedings is lifted;
2. The Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255
(doc. 1) is DENIED; and
3. Movant is DENIED a certificate of appealability.
IT IS SO ORDERED.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: July 27, 2017

2