KENNEY v. UNITED STATES OF AMERICA
Filing
4
OPINION re 3 Order denying 2255 Signed by Judge Joy Flowers Conti on 10/2/19. (mh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
v.
JOHN C. KENNEY,
Defendant.
)
)
)
)
)
)
)
)
Criminal No. 91-138
Civil Nos. 16-837, 17-1341
MEMORANDUM OPINION
Pending before the court are a § 2255 motion and an amended § 2255 filed by counsel on
behalf of defendant John C. Kenney (“Kenney”) to vacate his sentence based on his designation
as a career offender under the “mandatory” sentencing guidelines (Civ. No. 16-837, ECF Nos. 1,
6; Civ. No. 17-1341, ECF No. 1).1 The government filed a response in opposition, arguing that
the motions were untimely filed. (ECF No. 8). The motions were stayed at the request of the
parties pending resolution of potentially dispositive legal issues by the United States Supreme
Court and United States Court of Appeals for the Third Circuit. Kenney’s counsel filed a notice
that the § 2255 motions are now ripe for decision.
Specifically, the notice provides that because the United States Supreme Court denied
certiorari in United States v. Green, No. 18-8435, the Third Circuit Court of Appeals’ decision in
United States v. Green, 898 F.3d 315 (3d Cir. 2018), which is controlling, is now final. (ECF
No. 18). As Kenney recognizes, “the Third Circuit held that Johnson v. United States, 135 S. Ct.
2551 (2015), did not constitute a newly recognized right, such that a petitioner who was
1
The underlying criminal case, Crim. No. 91-138, is not on the court’s electronic filing system. The pending
motions are filed electronically at the civil cases. Unless otherwise stated, the court will cite to the documents filed
at Civil No. 16-837.
sentenced under the then-mandatory guidelines and who filed a petition under 28 U.S.C. § 2255
within one year of Johnson, did not file a timely § 2255 petition.” Id.
Kenney was sentenced on May 29, 1992, to a term of imprisonment of 262 months under
the pre-Booker, “mandatory” guidelines regime. He was designated as a career offender based
on prior convictions for simple assault and robbery. Although the one-year time limit to file a §
2255 motion is long expired, Kenney contends that his § 2255 motion is timely pursuant to 28
U.S.C. § 2255(f)(3) because it was filed within one year of Johnson. Kenney argues that Johnson
(holding that the “residual clause” of the Armed Career Criminal Act was unconstitutionally
vague) created a right newly recognized by the Supreme Court and made retroactively applicable
to cases on collateral review.
In Green, the Third Circuit Court of Appeals rejected this argument. The court reasoned
that the Supreme Court’s decision in Johnson did not “recognize” a new right for defendants
sentenced under the similar “residual clause” in the mandatory sentencing guidelines because
that remained an “open question” after Beckles v. United States, 137 S. Ct. 886 (2018) (rejecting
a vagueness challenge to the residual clause in the advisory sentencing guidelines regime). The
court explained in Green:
We hold that Green’s motion is untimely in light of the plain language of 28
U.S.C. § 2255(f)(3) and the Supreme Court’s indication in Beckles [v. United
States, 137 S. Ct. 886 (2018),] that it remains an open question whether the
mandatory Sentencing Guidelines can be subject to vagueness challenges. In so
holding, we do not speak to the merits of Green’s claim, and do not decide
whether the residual clause in the mandatory Sentencing Guidelines is
unconstitutionally vague. Only the Supreme Court can recognize the right that
would render Green’s motion timely under § 2255(f)(3).
898 F.3d at 322. Green’s § 2255 motion was denied as untimely filed.
Because Kenney’s § 2255 motion is procedurally identical to Green’s, it must also be
denied as untimely filed. See Polanco v. United States, No. CV 16-3769 (KSH), 2019 WL
2
2385889, at *4 (D.N.J. June 6, 2019) (Green is “procedurally indistinguishable” from § 2255
challenge to sentence as a career offender under the then-mandatory guidelines and compels
dismissal of motion as untimely).
Conclusion
For the reasons set forth above, the § 2255 motion and amended motion filed by Kenney
(Civ. No. 16-837, ECF Nos. 1, 6; Civ. No. 17-1341, ECF No. 1) are untimely filed and must be
DENIED.
Pursuant to 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue only if the
applicant has made a substantial showing of the denial of a constitutional right. Because Kenney
did not meet this standard, a certificate of appealability will not issue. Civil Action Nos. 16-837
and 17-1341 will be closed.
An appropriate order follows.
By the court:
October 2, 2019
/s/ JOY FLOWERS CONTI
Joy Flowers Conti
Senior United States District Judge
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?