RUSH v. UNITED STATES OF AMERICA
OPINION filed. Signed by Judge Anne E. Thompson on 9/18/2017. (mps)
EI VE D
SEP 19 20ll
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
BORN ISLAM RUSH,
HONORABLE ANNE E. THOMPSON
No. 16-2980 (AET)
UNITED STATES OF AMERICA,
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
Trenton, New Jersey 08608
Attorneys for Respondent United States of America
THOMPSON, District Judge:
Born Islam Rush
moves to vacate, correct, or
set aside his federal sentence pursuant to 28 U.S.C.
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 .
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.
(D.N.J. Jan. 25, 2011). At sentencing, Chief Judge
Garrett E. Brown, Jr., D.N.J.,
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)
(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
Petitioner's criminal case was reassigned to the undersigned on
February 26, 2015.
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
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
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).
The matter is now ripe for decision.
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.
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
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.
SENTENCING GUIDELINES MANUAL
4B1 . 2 (a) ( 2)
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.
(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
( 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.
United States v. Booker, 543 U.S. 220 (2005).
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.
U.S. District Judg
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