Hardin v. USA
Filing
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MEMORANDUM OF DECISION AND ORDER granting Govt's 5 Motion to Dismiss; denying and dismissing with prejudice Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by District Judge Martin Reidinger on 6/23/17. (Pro se litigant served by US Mail.) (ejb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00178-MR
CRIMINAL CASE NO. 1:13-cr-00039-MR-DLH-1
TRACY BERNARD HARDIN,
)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA, )
)
Respondent.
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)
MEMORANDUM OF
DECISION AND ORDER
This matter is before the Court on Petitioner’s Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255 [Civil Case No. 1:16-cv00178-MR (“CV”), Doc. 1] and on the Government’s Motion to Dismiss [CV
Doc. 5].
BACKGROUND
On November 20, 2013, Petitioner pled guilty in this Court to
possession of a firearm by a felon. [Criminal Case No. 1:13-cr-00039-MRDLH-1 (“CR”), Doc. 10: Acceptance and Entry of Guilty Plea].
The
presentence report (“PSR”) noted that Petitioner had one prior conviction
that triggered an enhancement to his base offense level under U.S.S.G. §
2K2.1(a)(4): a 2000 federal conviction for Hobbs Act robbery and use of a
firearm in relation to a crime of violence (as a single predicate). [CR Doc. 14
at ¶¶ 20, 40: PSR]. Based on the § 2K2.1 enhancement, Petitioner faced a
Guidelines range of 77 to 96 months. [Id. at ¶ 71]. On October 21, 2014,
this Court imposed a sentence of 77 months’ imprisonment. [CR Doc. 17:
Judgment]. Petitioner did not appeal.
On June 26, 2015, in Johnson v. United States, the Supreme Court
held that the residual clause of the Armed Career Criminal Act (“ACCA”) —
which covered any offense that “otherwise involves conduct that presents a
serious potential risk of physical injury to another” — is “unconstitutionally
vague.” 135 S. Ct. 2551, 2557 (2015). Based on that holding, the Court
concluded that “imposing an increased sentence under the residual clause...
violates the Constitution’s guarantee of due process.” Id. at 2563.
On June 18, 2016, Petitioner filed the pending motion to vacate
through the Federal Defender, raising a Johnson claim.
[CV Doc. 1].
Petitioner argues that, under Johnson, his prior conviction for a 2000 federal
conviction for Hobbs Act robbery and use of a firearm in relation to a crime
of violence no longer qualifies as a predicate for a base-offense level
enhancement under U.S.S.G. § 2K2.1(a).
On September 2, 2016, the Court placed Petitioner’s motion in
abeyance pending the outcome of Beckles v. United States, S. Ct. No. 152
8455, in which petitioner argued that his career-offender sentence was
erroneously enhanced by an unconstitutionally vague residual clause of
U.S.S.G. § 4B1.2. [Doc. 4]. On March 6, 2017, the Supreme Court held in
Beckles that “the advisory Guidelines are not subject to vagueness
challenges.” 137 S. Ct. 886, 890 (2017).
On May 4, 2017, the Government filed the pending motion to dismiss,
arguing that Petitioner’s Johnson challenge to his enhanced sentence under
U.S.S.G. § 2K2.1(a) has no validity in light of Beckles. [CV Doc. 5]. On May
9, 2017, the Court granted the Federal Defender’s motion to withdraw from
representation of Petitioner. [CV Doc. 7]. In the Court’s order, the Court
gave Petitioner twenty days to file a pro se response to the Government’s
motion to dismiss. [Id.]. Petitioner has not responded and the time to do so
has passed.
STANDARD OF REVIEW
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along with “any
attached exhibits and the record of prior proceedings . . .” in order to
determine whether the petitioner is entitled to any relief on the claims set
forth therein. After examining the record in this matter, the Court finds that
the motion to vacate can be resolved without an evidentiary hearing based
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on the record and governing case law. See Raines v. United States, 423
F.2d 526, 529 (4th Cir. 1970).
DISCUSSION
As noted, Petitioner relies on Johnson in challenging his enhanced
sentence under U.S.S.G. § 2K2.1(a). In Beckles, however, the Supreme
Court held that “the advisory Guidelines are not subject to vagueness
challenges under the Due Process Clause.” 137 S. Ct. at 890. Thus, the
holding in Beckles has foreclosed Petitioner’s Johnson claim, and the Court
will therefore deny and dismiss the petition and grant the Government’s
motion to dismiss.
The Court finds that the Petitioner has not made a substantial showing
of a denial of a constitutional right. See generally 28 U.S.C. § 2253(c)(2);
see also Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in order to satisfy
§ 2253(c), a “petitioner must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or
wrong”) (citing Slack v. McDaniel, 529 U.S. 473, 484-85 (2000)). Petitioner
has failed to demonstrate both that this Court’s dispositive procedural rulings
are debatable, and that the Motion to Vacate states a debatable claim of the
denial of a constitutional right. Slack v. McDaniel, 529 U.S. 473, 484-85
(2000). As a result, the Court declines to issue a certificate of appealability.
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See Rule 11(a), Rules Governing Section 2255 Proceedings for the United
States District Courts, 28 U.S.C. § 2255.
ORDER
IT IS, THEREFORE, ORDERED that the Government’s Motion to
Dismiss [CV Doc. 5] is GRANTED, and the Petitioner’s Section 2255 Motion
to Vacate, Set Aside, or Correct Sentence [CV Doc. 1] is DENIED and
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Court declines to issue a
certificate of appealability.
IT IS SO ORDERED.
Signed: June 23, 2017
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