Filing 31

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

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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY DARNELL SCURRY, Petitioner, v. UNITED STATES OF AMERICA, Respondent. : : : : : : : : : : : 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 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 6

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