SCURRY v. UNITED STATES OF AMERICA

Filing 31

OPINION FILED. Signed by Judge Renee Marie Bumb on 10/6/17. (js)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DARNELL SCURRY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil Action No. 14-7934(RMB)

OPINION

APPEARANCES:
Frank L. Corrado, Esq.
Joseph Christopher Gillin-Schwartz, Esq.
BARRY, CORRADO & GRASSI, P.C.
2700 Pacific Avenue
Wildwood, NJ 08620
On behalf of Petitioner
Howard Joshua Wiener
Assistant United States Attorney
OFFICE OF THE U.S. ATTORNEY
401 Market Street, 4th floor
Camden, NJ 08101
On behalf of Respondent

BUMB, United States District Judge
This matter comes before the Court upon Petitioner Darnell
Scurry’s (“Scurry”) Johnson claim1 in his amended motion under 28

1

On June 26, 2015, the Supreme Court held that increasing a
defendant’s sentence “under the residual clause of the Armed
Career Criminal Act violates the Constitution's guarantee of due
process.”
Johnson v. United States, 135 S.Ct. 2551, 2563
(2015).
On April 18, 2016, the Supreme Court held that the

U.S.C. § 2255 to vacate, set aside or correct his sentence. (Am.
2255 Mot., ECF No. 27.)

For the reasons discussed below, the

claim is denied, and the amended § 2255 motion is dismissed with
prejudice.
I.

BACKGROUND
On

Scurry’s

June

28,

motion

2016,
to

this

vacate,

Court
set

dismissed

aside

or

as

time-barred

correct

sentence,

challenging his June 14, 2013 conviction for violation of 18
U.S.C. § 922(g)(1), felon in possession of a firearm.

(Opinion

and Order, ECF Nos. 14, 15; United States v. Scurry, 11cr851
(RMB) (D.N.J)).

On June 27, 2016, the Clerk of Court received

Petitioner’s self-styled “Motion for Leave Requesting to Amend
Johnson

Issue

to

Petitioner’s

Pending

Section

2255

Motion.”

Scurry v. United States, Civil Action No. 16-3828 (RMB) (ECF No.
1 at 1.) The following day, the same day the Opinion and Order
dismissing Civil Action No. 14-7434 was entered, the Clerk of
Court docketed Petitioner’s motion for leave to amend in a new
civil action, 16-3828 (RMB).
The

Court

granted

in

part

Scurry’s

motion

for

reconsideration of the Order dismissing Civil Action No. 147434, and reopened this matter to permit Scurry to proceed with
his Johnson claim only. (Order, ECF No. 19.) The Court’s Opinion
Johnson
review.

decision is retroactively applicable on
Welch v. U.S., 136 S.Ct. 1257, 1268 (2016).
2

collateral

and Order, dated June 28, 2016 (ECF Nos. 14, 15), remained in
force with respect to Scurry’s non-Johnson claims.

The Court

appointed counsel to represent Scurry with his Johnson claim
(ECF Nos. 19-22), and counsel filed a brief on Scurry’s behalf
(Pl’s Brief in Supp. of Mot. under 28 U.S.C. § 2255 to Vacate,
Set Aside or Correct Sentence by a Person in Custody, (“Pl’s
Brief”) ECF No. 26.) Scurry’s counsel raised multiple claims,
including the Johnson claim.

(Id.)

The Court permitted Scurry

to amend his otherwise untimely § 2255 motion solely to bring a
claim under Johnson, and the Court will address only the Johnson
claim.2

The Government filed a letter brief in response (Letter

Brief, ECF No. 30.)
II.

DISCUSSION
On May 30, 2013, Scurry was sentenced to a term of 85-

months imprisonment and three-years supervised release.

(Pl’s

Brief, ECF No. 26 at 6.)

The sentencing court treated Scurry’s

three

for

prior

N.J.S.A.

convictions

2C:12-1(b)(7)

as

aggravated
“crimes

2

assault
of

pursuant

violence”

to

under

It appears that Scurry was released from prison on May 26,
2017.
See
BOP
Inmate
Locator,
available
at
https://www.bop.gov/inmateloc/.
It appears that the § 2255
motion may be moot, absent a showing by Scurry of collateral
consequences of his sentence. See Burkey v. Marberry, 556 F.3d
142, 148 (3d Cir. 2009) (“[e]ven though collateral consequences
are not presumed, a petitioner may still avoid a finding of
mootness if he can show a continuing injury, or collateral
consequence, that is sufficient.” (quoting Spencer v. Kemna, 523
U.S. 1, 14 (1998)).
Thus, the Court also addresses the merits
of the Johnson claim.
3

§4B1.2(a)(2) of the United States Sentencing Guidelines.

(Id.)

With these prior convictions, Scurry’s base level offense was
increased to 24.

(Id.)

For his Johnson claim, Scurry asserted that the residual
clause

of

the

U.S.S.G.,

§4B1.2(a)(2),

was

declared

unconstitutionally vague, and could not support his sentence.
(Pl’s Brief, ECF No. 26 at 7.)
that

increasing

a

In 2015, the Supreme Court held

defendant’s

sentence

“under

the

residual

clause of the Armed Career Criminal Act (ACCA) violates the
Constitution’s guarantee of due process.

(Id. at 14, quoting

Johnson v. United States, 135 S.Ct. 2551, 2563 (2015)).

In

2016, the Third Circuit held that language identical to the ACCA
residual clause in the then existing residual clause of U.S.S.G.
§4B1.2(a)(2) was unconstitutionally vague.

(Id.); United States

v. Calabretta, 831 F.3d 128, 133-34 (3d Cir. 2016) abrogated by
Beckles v. United States, 137 S.Ct 886, 890-91 (2017).

(Id.)

When the Government filed its letter brief in response to
the amended § 2255 motion, the law had changed.
ECF No. 30.)

(Letter Brief,

The Supreme Court held that the reason for finding

the residual clause in the ACCA void for vagueness does not
extend

to

the

definition

of

“crime

of

violence”

in

the

Sentencing Guidelines, although the language is identical. (Id.
at 1-2 citing Beckles).

4

“The issue in Beckles was whether the advisory Guidelines
‘fix the permissible sentences for criminal offenses’ such that
they can be challenged as vague.”

In re Hofner, ——F.3d——, 2017

WL 3908880 (3d Cir. Sept. 7, 2017).
the

vagueness

Guidelines

doctrine

because

cannot

advisory

The Supreme Court held that

be

applied

Guidelines

to

cannot

arbitrarily since they are not enforced at all.

the

advisory

be

enforced

(Id., citing

Beckles, 127 S.Ct. at 894.)
In Beckles, the Supreme Court extinguished Scurry’s claim
that the Johnson holding should extend to his sentence under
identical

language

in

the

residual

clause

of

the

U.S.S.G.,

§4B1.2(a)(2).
III. CONCLUSION
For the reasons discussed above, the Court denies Scurry’s
Johnson claim in the amended § 2255 motion (ECF No. 27), and
dismisses the petition with prejudice.

The Court finds that,

based on the Supreme Court’s decision in Beckles, reasonable
jurists could not debate whether the petition should have been
resolved

in

a

different

manner

or

that

the

issue

presented

should be encouraged to proceed.

See 28 U.S.C. § 2253; Miller-

El

336

v.

Cockrell,

537

U.S.

322,

(2003).

certificate of appealability shall issue.

Dated: October 6, 2017
5

Therefore,

no

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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