Filing 14

OPINION filed. Signed by Judge Anne E. Thompson on 9/18/2017. (mps)

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A Ee EI VE D SEP 19 20ll IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY AT 8:3o WIL~M CLERK BORN ISLAM RUSH, HONORABLE ANNE E. THOMPSON Petitioner, Civil Action No. 16-2980 (AET) v. OPINION UNITED STATES OF AMERICA, Respondent. APPEARANCES: Alison Brill, Esq. Off ice of the Federal Public Defender 22 S. Clinton Ave. Station Plaza #4, 4th Fl. Trenton, New Jersey 08609 Attorneys for Petitioner Born Islam Rush William E. Fitzpatrick, Acting US Attorney Molly S. Lorber, AUSA United States Attorney's Office 402 East State Street Room 430 Trenton, New Jersey 08608 Attorneys for Respondent United States of America THOMPSON, District Judge: I. INTRODUCTION Born Islam Rush (~Petitioner") moves to vacate, correct, or set aside his federal sentence pursuant to 28 U.S.C. § 2255. Motion, Docket Entry 1. Respondent United States of America opposes the motion. Answer, Docket Entry 11. For the reasons stated herein, Petitioner's motion is dertied, and no certificate of appealability will issue. I I . BACKGROUND Petitioner pled guilty to a superseding information charging him with distribution of 5 or more grams of crack cocaine, 21 U.S.C. § 841. United States v. Born Islam Rush, No. 09-cr-174 (D.N.J. Jan. 25, 2011). At sentencing, Chief Judge Garrett E. Brown, Jr., D.N.J., 1 determined Petitioner had two prior convictions that qualified him as a career offender under the sentencing guidelines. "Mr. Rush was designated as a career offender with a base offense level of 34, a total offense level of 31, a criminal history category of VI, and an advisory guideline range of 188 to 235 months." Petition at 2. The court imposed a 96-month sentence. On June 26, 2015, the United States Supreme Court struck down the residual clause of the Armed Career Criminal Act ("ACCA") as unconstitutionally vague. Johnson v. United States, 135 S. Ct. 2551 (2015). "The residual clause defined a crime as a 'violent felony' if it 'otherwise involves conduct that presents a serious potential risk of physical injury to another.'" In re Hoffner, No. 15-2883, 2017 WL 3908880, at *2 (3d Cir. Sept. 7, 2017) (precedential) (quoting 18 U.S.C. § 92 4 ( e) ( 2) (B) (ii)) . Pe ti ti oner thereafter filed his first motion under 28 U.S.C. § 2255 on May 25, 2016 challenging his 1 Petitioner's criminal case was reassigned to the undersigned on February 26, 2015. 2 designation as a career offender under the sentencing guidelines.2 The Court ordered Respondent to answer the petition on May 26, 2016; however, Chief Judge Simandle iss~ed a standing order on June 23, 2016 staying all cases seeking relief undei Johnson. The standing order provided for a 150-day period in which petitioners could supplement their Johnson motions, followed by a 150-day period for the United States to answer~ See Standing Order 16-2, available at The Court conducted a telephone conference with the parties on January 11, 2017 at which time the parties agreed to lift the stay imposed by the standing order and to a briefing schedule. Instead of filing an answer, Respondent filed a motion to stay briefing pending the Supreme Court's decision in Beckles v. 'United States, No. 15-8544. Petitioner objected. Before the Court could rule on the motion, the Supreme Court determined the advisory sentencing guidelines were not subject to vagueness challenges. Beckles v. United States, 137 S. Ct. 886 (2017). The Court dismissed Respondent's motion as moot, and Respondent filed its answer arguing Petitioner's§ 2255 motion was meritless in light of Beckles. 2 The Supreme Court determined Johnson is retroactive to cases on collateral review in Welch v. United States, 136 S. Ct. 1257 (2016). Petitioner's Johnson argument is therefore timely under 28 u.s.c. § 2255(f) (3). 3 The matter is now ripe for decision. 3 III. STANDARD OF REVIEW Section 2255 provides in relevant part that [a] prisoner in custody under ~entence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence. 28 U.S.C. § hearing on a 2255(a). A district court must hold an evidentiary § 2255 motion unless the "motion and the files and records of the case ·conclusively show" that the movant is not entitled to relief. 28 U.S.C. § 2255(b); see also United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005). Here, the record conclusively demonstrates that Petitioner is not entitled to relief. IV. ANALYSIS Petitioner argues his sentence is invalid because the sentencing guidelines career offender provision that was in effect at the time of his sentencing was identical to the residual clause struck down by the Supreme Court in Johnson. U. S. SENTENCING GUIDELINES MANUAL § 4B1 . 2 (a) ( 2) 3 ( U. S • See SENTENCING COMM' N The· Court held oral argument on a motion to withdraw as counsel filed by counsel for Petitioner on April 18, 2017. Petitioner and counsel both represented to the Court at that hearing that they intended to withdraw the motion to withdraw. Counsel indicated they would not be filing anything further on Petitioner's § 2255 motion. 4 2010) (defining "crime of violence" as including offenses that "otherwise involves conduct that presents .a serious potential risk of physical injury to another") . Petitioner was sentenced post-Booker, 4 such that the guidelines were advisory at the time of sentencing. This puts Petitioner's arguments squarely in the category of claims foreclosed by Beckles. See In re Hoffner, No. 15- 2 8 8 3 , 201 7 WL 3 9 0 8 8 8 0 , at *8 ( 3 d Cir . Sept . 7 , 2017) (precedential). His § 2255 motion must therefore be denied. An appeal may not be taken to the court of appeals from a final order in a § 2255 proceeding unless a judge issues a certificate of appealability on the ground that "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c) (2). This Court denies a certificate of appealability because jurists of reason would not find it debatable that Petitioner's arguments are meritless under Beckles and that he has not "made a substantial showing of the denial of a constitutional right . .'' 28 U.S.C. 4 § United States v. Booker, 543 U.S. 220 (2005). 5 2253(c) (2). V. CONCLUSION For the reasons stated above, Petitioner's Motion to Vacate, Correct, or Set Aside his sentence is denied. No certificate of appealability shall issue. An accompanying Order will be entered. ANNE U.S. District Judg 6

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