SCURRY v. UNITED STATES OF AMERICA
OPINION FILED. Signed by Judge Renee Marie Bumb on 10/6/17. (js)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA,
Civil Action No. 14-7934(RMB)
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
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
Johnson v. United States, 135 S.Ct. 2551, 2563
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
challenging his June 14, 2013 conviction for violation of 18
U.S.C. § 922(g)(1), felon in possession of a firearm.
and Order, ECF Nos. 14, 15; United States v. Scurry, 11cr851
On June 27, 2016, the Clerk of Court received
Petitioner’s self-styled “Motion for Leave Requesting to Amend
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).
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
decision is retroactively applicable on
Welch v. U.S., 136 S.Ct. 1257, 1268 (2016).
and Order, dated June 28, 2016 (ECF Nos. 14, 15), remained in
force with respect to Scurry’s non-Johnson claims.
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.
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
The Government filed a letter brief in response (Letter
Brief, ECF No. 30.)
On May 30, 2013, Scurry was sentenced to a term of 85-
months imprisonment and three-years supervised release.
Brief, ECF No. 26 at 6.)
The sentencing court treated Scurry’s
It appears that Scurry was released from prison on May 26,
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.
§4B1.2(a)(2) of the United States Sentencing Guidelines.
With these prior convictions, Scurry’s base level offense was
increased to 24.
For his Johnson claim, Scurry asserted that the residual
unconstitutionally vague, and could not support his sentence.
(Pl’s Brief, ECF No. 26 at 7.)
In 2015, the Supreme Court held
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)).
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).
When the Government filed its letter brief in response to
the amended § 2255 motion, the law had changed.
ECF No. 30.)
The Supreme Court held that the reason for finding
the residual clause in the ACCA void for vagueness does not
Sentencing Guidelines, although the language is identical. (Id.
at 1-2 citing Beckles).
“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 Supreme Court held that
arbitrarily since they are not enforced at all.
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
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
should be encouraged to proceed.
See 28 U.S.C. § 2253; Miller-
certificate of appealability shall issue.
Dated: October 6, 2017
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
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