Taylor v. United States of America

Filing 2

ORDER re 1 John R. Taylors Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence filed by John R Taylor. A COA is DENIED, and the denial shall be included in the judgment. Signed by Honorable Timothy D. DeGiusti on 8/9/17. (ml)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,

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Plaintiff,
vs.
JOHN R. TAYLOR,
Defendant.

Case No. CR-95-158-D
(Case No. CIV-16-428-D)

ORDER
The matter before the Court is Defendant John R. Taylor’s Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside or Correct Sentence [Doc. No. 357], which is supported by a
memorandum of law [Doc. No. 364].

While this is not Defendant’s first § 2255 motion,

the Tenth Circuit authorized him to file a second or successive motion to raise a claim
based on Johnson v. United States, 135 S. Ct. 2551 (2015). See In re Taylor, No. 16-6101,
Order (10th Cir. May 3, 2016) (unpublished). At the government’s request, the Court
initially abated these proceedings pending the Supreme Court’s decision in Beckles v.
United States, 137 S. Ct. 886 (2017).

After that decision, Defendant filed a supplemental

brief [Doc. No. 388]; the government filed its response [Doc. No. 393]; and Defendant
filed a reply brief [Doc. No. 394].

After careful consideration of the parties’ submissions

and the case record, the Court finds that no evidentiary hearing is needed and the Motion
should be dismissed. 1
1

No evidentiary hearing is needed where the existing record conclusively shows the
defendant is not entitled to relief. See United States v. Lopez, 100 F.3d 113, 121 (10th Cir. 1996);
28 U.S.C. § 2255(b).

Defendant seeks relief from concurrent 360-month prison sentences imposed on
January 21, 1998, after conviction by a jury of conspiracy to distribute cocaine base and
possession with intent to distribute cocaine base.

The sentencing judge, the Honorable

Ralph G. Thompson, utilized the career offender provisions of the Sentencing Guidelines,
U.S.S.G. § 4B1.1 and § 4B1.2, to determine a range of imprisonment of 360 months to life.
The career offender guideline was triggered by Defendant’s having “at least two prior
felony convictions of either a crime of violence or a controlled substances offense.”
U.S.S.G. § 4B1.1(3) (1995). 2
violence:

See

Defendant had three felony convictions for crimes of

kidnapping in violation of Cal. Pen. Code § 207(a); forcible rape in violation

of Cal. Pen. Code § 261(2); and second degree robbery in violation of Cal. Pen. Code § 211
using a firearm as provided by § 12022.5. 3

Defendant’s conviction in this case was

affirmed on direct appeal; he did not challenge his sentence.

See United States v. Taylor,

183 F.3d 1199 (10th Cir.), cert. denied, 528 U.S. 904 (1999).
On multiple occasions in ensuing years, Defendant has unsuccessfully sought postconviction relief using various procedures. See Orders of May 24, 2001 and Nov. 8, 2001
[Doc. Nos. 275 & 276] (denying first § 2255); Taylor v. United States, Nos. 05-6034 & 056267 (10th Cir. May 17, 2005 & Nov. 9, 2005) (denying authorization to file second or
successive § 2255 motions); United States v. Taylor, 362 F. App’x 924 (10th Cir. 2010)

2

The 1995 edition of the Sentencing Guidelines Manual was used in Defendant’s case.
See Presentence Investigation Report [Doc. No. 358], ¶ 28.
3

See Presentence Investigation Report [Doc. No. 358], ¶ 37. However, because the
kidnapping and rape offenses occurred on a single occasion, they may not be counted separately.
See U.S.S.G. § 4B1.2(3) (1995); see also U.S.S.G. §4A1.2(a)(2) (1995).
2

(affirming denial of motion under 18 U.S.C. § 3582(c)(2)); United States v. Taylor, 381 F.
App’x 876 (10th Cir. 2010) (affirming dismissal of Rule 60(b) motion; denying
authorization to file second or successive § 2255 motion); In re Taylor, No. 12-6157 (10th
Cir. July 3, 2012) (denying authorization to file second or successive § 2255 motion);
United States v. Taylor, 525 F. App’x 768 (10th Cir. 2013) (affirming denial of motion
under 18 U.S.C. § 3582(c)(2)).
On June 26, 2015, the Supreme Court issued its decision in Johnson v. United
States, 135 S. Ct. 2551 (2015), regarding enhanced sentences under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), where a defendant has three prior
convictions for “a violent felony . . . committed on occasions different from one another.”
The Supreme Court declared unconstitutionally vague a part of the ACCA’s definition of
“violent felony” referred to as the “residual clause.”

Johnson, 135 S. Ct. at 2557. The

residual clause expanded a list of enumerated offenses to include any felony that “otherwise
involves conduct that presents a serious potential risk of physical injury to another.”

See

§ 924(e)(2)(B)(ii). In invalidating the residual clause, the Supreme Court expressly stated
that its ruling “does not call into question application of the [ACCA] to the four enumerated
offenses, or the remainder of the Act’s definition of a violent felony.”

Johnson, 135 S.

Ct. at 2563. In 2016, the Supreme Court determined that Johnson announced a new rule
of constitutional law “that has retroactive effect in cases on collateral review.”
United States, 136 S. Ct. 1257, 1268 (2016).

3

Welch v.

In May 2016, Defendant applied to the Tenth Circuit for authorization to bring a
second or successive § 2255 motion based on Johnson.

See In re Taylor, No. 16-6101,

Pet. (10th Cir. May 2, 2016). In granting authorization, the court of appeals found that
Defendant had made a prima facie showing that his claim met the gatekeeping requirements
of 28 U.S.C. § 2255(h)(2) and § 2244(b)(3) because “Johnson announced a new rule of
constitutional law that was made retroactive to cases on collateral review in Welch.”
In re Taylor, No. 16-6101, Order (10th Cir. May 3, 2016).

See

The court recognized that

Defendant challenges “a sentence enhanced under the guideline for career offenders” rather
than an ACCA sentence. See id. at 1-2.

However, the Tenth Circuit relied on its holding

in In re Encinias, 821 F.3d 1224, 1226 (10th Cir. 2016), “that second or successive § 2255
motions that rely on Johnson to challenge the career-offender guideline qualify for
authorization under § 2255(h)(2).” See id. at 3. Defendant filed the instant Motion
within one year after the Johnson decision, claiming it is timely under § 2255(f)(3). 4
Defendant’s § 2255 claim based on Johnson, as fleshed out in his supporting briefs,
is that one of the predicate felony offenses used to enhance his sentence – the California
robbery conviction – does not satisfy the career offender guideline’s definition of a “crime
of violence” unless the residual clause of § 4B1.2(a)(2) is used. 5

Defendant assumes the

holding of Johnson extends to the residual clause in § 4B1.2 of the Sentencing Guidelines.
This assumption was previously supported by Tenth Circuit case law.

See United States

4

The government does not challenge the timeliness of Defendant’s Motion, so the Court
need not address this issue.
5

In the 1995 version of the Guidelines, the residual clause appears in § 4B1.2(1)(ii).
4

v. Madrid, 805 F.3d 1204, 1211 (10th Cir. 2015) (holding that Johnson invalidated the
“virtually identical” residual clause in § 4B1.2(a)(2)), abrogated by Beckles v. United
States, 137 S. Ct. 886 (2017)). But because Madrid was abrogated by Beckles, Defendant
now relies on qualifying language in the Supreme Court’s opinion in Beckles, including its
“hold[ing] that the advisory Sentencing Guidelines are not subject to a vagueness challenge
under the Due Process Clause.” See Beckles, 137 S. Ct. at 895 (emphasis added). Also,
a concurring opinion expresses the view that Beckles leaves open the question of whether
Johnson may still apply to sentences imposed when the Guidelines were mandatory, that
is, before United States v. Booker, 543 U.S. 220, 233 (2005), rendered them advisory. See
Beckles, 137 S. Ct. at 903, n.4 (Sotomayor, J., concurring in the judgment). 6
Regardless of the answer to the mandatory Guidelines question, this Court can reach
the merits of Defendant’s § 2255 claim only if he satisfies the preconditions of § 2255(h)(2)
that apply to second or successive motions. Otherwise, the Court lacks jurisdiction to
grant relief, and Defendant’s Motion must be dismissed. See Case v. Hatch, 731 F.3d
1015, 1029 (10th Cir. 2013); see also 28 U.S.C. § 2244(b)(4) (“A district court must
dismiss any claim presented in a second or successive application that the court of appeals

6

The impact of Beckles on a § 2255 claim of a defendant who was sentenced under the
pre-Booker mandatory Guidelines scheme, is presented for decision by the Tenth Circuit in an
appeal set for oral argument on September 25, 2017. See United State v. Greer, No. 16-1282,
Joint Pet. Panel Rehr’g (10th Cir. April 10, 2017) (pet. granted, April 11, 2017). Beyond this
general issue, a more specific point was made by the Supreme Court justices who concurred in the
judgment in Beckles: A defendant whose prior conviction was a “crime of violence” under the
career offender guideline because it was enumerated in the official commentary to § 4B1.2(a)
cannot claim that the guideline was vague as applied to him. See Beckles, 137 S. Ct. at 897-98
(Ginsburg, J., concurring in the judgment); 137 S. Ct. at 898 (Sotomayor, J., concurring in the
judgment).
5

has authorized to be filed unless the applicant shows that the claim satisfies the
requirements of this section.”). In granting Defendant authorization to file his Motion, the
court of appeals made only a preliminary assessment, leaving this Court to determine
whether Defendant has shown that his claim is based “on a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was previously
unavailable.” See 28 U.S.C. § 2255(h)(2).
When Madrid remained good law, the Tenth Circuit had decided that a claim
challenging a sentence that was based on the residual clause of the career offender guideline
could be “sufficiently based on Johnson to permit authorization under § 2255(h)(2).” See
In re Encinias, 821 F.3d 1224, 1226 (10th Cir. 2016). As previously noted, the Tenth
Circuit relied on Encinias in granting authorization for Defendant to file the instant § 2255
Motion. The premise of Encinias has been undermined, however, by the abrogation of
Madrid and the Supreme Court’s rejection of the view that the residual clauses of the
ACCA and the career offender guideline are coterminous. It is now open to debate
whether the Due Process Clause applies to the mandatory Guidelines; if so, it must then be
decided whether such a rule would be entitled to retroactive effect in cases on collateral
review, as discussed in Welch, 136 S. Ct. at 1265.

The government addresses these issues

in its briefs and argues against findings in Defendant’s favor.

Defendant addresses only

the first issue, arguing that Beckles was limited to the advisory Guidelines; he presents no
argument regarding the second issue of retroactivity. 7
7

Although Defendant appears without counsel, he has chosen to represent himself
throughout this case, including two jury trials and numerous post-conviction proceedings. The
6

In the Court’s view, the dispositive issue is even narrower.

Defendant must show

that his claim rests on a new constitutional rule made retroactive by the Supreme Court.
A finding of retroactivity by this Court, or even by the court of appeals, would be
insufficient to satisfy § 2255(h)(2).

The only Supreme Court case that might satisfy this

requirement for a career offender guideline claim based on Johnson would be Welch, but
that case was limited to the new rule announced in Johnson that “changed the substantive
reach of the Armed Career Criminal Act,” and its statutorily mandated punishments for a
class of persons subject to the Act.

Welch, 136 S. Ct. at 1265.

The Court explained:

Before Johnson, the Act applied to any person who possessed a firearm after
three violent felony convictions, even if one or more of those convictions fell
under only the residual clause. An offender in that situation faced 15 years
to life in prison. After Johnson, the same person engaging in the same
conduct is no longer subject to the Act and faces at most 10 years in prison.
The residual clause is invalid under Johnson, so it can no longer mandate or
authorize any sentence.
Id.

The Court reasoned that Johnson was not merely a procedural decision because it

“affected the reach of the underlying statute rather than the judicial procedures by which
the statute is applied.”

Id.

Arguably, the same reasoning would not apply to a Supreme Court decision
invalidating the residual clause of the career offender guideline.

The Sentencing

Guidelines, even when applied in a mandatory fashion, are not the equivalent of a criminal
statute and cannot require a particular punishment.

They provide a punishment or range

Court most recently appointed counsel to assist Defendant with a motion to reduce his sentence
under 18 U.S.C. § 3582(c)(2), but Defendant asked the Court to terminate the representation,
which was done. See Order of Aug. 17, 2015 [Doc. No. 354].
7

of punishments that a sentencing court may impose, as one factor that must be considered
under 18 U.S.C. § 3553(a) in fashioning an appropriate sentence for a particular defendant.
Thus, Welch would not necessarily mandate that a Supreme Court decision invalidating the
residual clause of the career offender guideline would be given retroactive effect to cases
on collateral review. 8
Under these circumstances, the Court finds that Defendant has failed to show that
his § 2255 claim is based on a new rule of constitutional law that has been made retroactive
by the Supreme Court to cases on collateral review.

Therefore, the Court finds that

Defendant’s Motion must be dismissed.
IT IS THEREFORE ORDERED that Defendant’s Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside or Correct Sentence [Doc. No. 357] is DISMISSED.

A separate

judgment shall be entered.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2255 Proceedings, the Court must issue or deny a certificate of appealability
(“COA”) when it enters a final order adverse to a movant.
“a substantial showing of the denial of a constitutional right.”

8

A COA may issue only upon
See 28 U.S.C. §2253(c)(2).

Some district courts have reached a similar conclusion in the context of finding a § 2255
motion to be untimely because the time limit of § 2255(f)(3) is only available when a claim is
based on a right “newly recognized by the Supreme Court and made retroactively applicable to
cases on collateral review.” See, e.g., United States v. Autrey, Crim. No. 1:99-cr-467, 2017 WL
2646287, *4 (E.D. Va. June 19, 2017) (to be published) (“it is clear that Johnson did not establish
a new “right” applicable to defendant or the mandatory [Sentencing] Guidelines”); see also United
States v. Brigman, Case No. 03-20090-01-JWL, 2017 WL 3267674, *2 (D. Kan. Aug. 1, 2017)
(collecting cases). Other district courts disagree. See United States v. Walker, Case No. 1:93-cr00333-DAP, 2017 WL 3034445, *5 (N.D. Ohio July 18, 2017).
8

“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.”

Miller

El v. Cockrell, 537 U.S. 322, 327 (2003); see Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Where relief is denied on procedural grounds without reaching the merits of the prisoner’s
claims, “a COA should issue when the prisoner shows, at least, that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.” Slack, 529 U.S. at 484.
that this standard is not met here.

Upon consideration, the Court finds

Therefore, a COA is DENIED, and the denial shall be

included in the judgment.
IT IS SO ORDERED this 9th day of August, 2017.

9