ELYSEE v. UNITED STATES OF AMERICA
OPINION. Signed by Judge Kevin McNulty on 06/30/2017. (ek)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 16-3697 (KM)
UNITED STATES OF AMERICA,
Pro se petitioner, David Elysee, is a federal prisoner confined at F.C.I. Fort Dix in Fort
Dix, New Jersey. He has filed a motion to correct sentence pursuant to 28 U.S.C.
asserts a claim under the recent United States Supreme Court decision Johnson v. United States,
135 S. Ct. 2551 (2015).
This Court issued the required United States
Miller, 197 F.3d 644 (3d Cir. 1999) notice
on Mr. Elysee on January 30, 2017. That notice gave Mr. Elysee forty-five days in which to
choose either to proceed with his
an all-inclusive amended
motion as is, or to withdraw his
2255 motion and file
motion. Thereafter, on February 23, 2017, Mr. Elysee filed a
letter that stated that he was in the SHU and unable to access any of his legal materials to put him
in the proper position to respond to the Miller notice. Mr. Elysee sought a stay of these
proceedings until such time as he is returned to general population.
In response to Mr. Elysee’s February 23, 2017 letter, on May 15, 2017, this Court issued
an order to show cause on Mr. Elysee why he could not respond to the Miller notice. This Court
noted that it had now been three months since Mr. Elysee had filed a request for a stay.
Accordingly, this Court gave Mr. Elysee thirty days in which to show cause why he could not
respond to the IvEller notice. Furthermore, this Court instructed Mr. Elysee that failure to respond
to the May 15. 2017 order would result in this Court presuming that he wished to proceed with
motion as is. Mr. ELysee never responded to the May 15, 2017 order. Therefore, this
Court will proceed to rule on his
2255 motion as is.
Under Rule 4(b) of the Rules Governing Section 2255 Proceedings, this Court must
2255 motion. “If it plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and
direct the clerk to notify the petitioner.” See 28 U.S.C.
2255 Rule 4(b). For the following
2255 motion will be summarily dismissed.
In Johnson, the United States Supreme Court held that the residual clause of the Armed
Career Criminal Act (“ACCA”) was unconstitutionally void for vagueness. See 135 S. Ct. at
2556-57. In his
motion, Mr. Elysee asserts that his sentence should be corrected because
it was improperly enhanced by a in the United States Sentencing Guidelines that is
indistinguishable from the statutory provision found unconstitutional in Johnson. However, Mr.
Elysee’s claim is foreclosed by the recent Supreme Court decision in Beck/es v. United States,
137 S. Ct. 886 (2017). In Beck/es, the Supreme Court held that “the advisory Sentencing
Guidelines are not subject to a vagueness challenge under the Due Process Clause.” See Id. at
895. Because Mr. Elysee’s challenge is to an enhancement under the Sentencing Guidelines,
Beck/es warrants summary dismissal of his
I wiLl aLso deny a certificate of appealability. Pursuant to 28 U.S.C.
2253(c), unless a
circuit justice or judge issues a certificate of appealability, an appeal may not be taken from a
final order in a proceeding under 28 U.S.C.
2255. A certificate of appealability may issue “only
if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could
disagree with the district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed further.” MillerEl
Cockrell. 537 U.S. 322, 327 (2003). Applying this standard, I find that a certificate of
appealability shall not issue in this case. An appropriate order will be entered.
DATED: June 30, 2017
KEVIN MCNUL Y
United States District Judge
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