Rice v. USA
Filing
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MEMORANDUM OPINION. Signed by District Judge R Leon Jordan on 10/10/19. (JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
REGINALD RICE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Nos. 2:17-CV-16; 2:01-CR-30
MEMORANDUM OPINION
On August 22, 2001, a jury convicted Reginald Rice (“Petitioner) for a crack-cocaine
offense, and the Court sentenced him on December 13, 2001, to 262 month’s imprisonment, to be
followed by six years of supervised release [Docs. 42, 62, Case No. 2:01-CR-30]. Petitioner’s
judgment was affirmed on appeal [Doc. 73, United States v. Rice, 66 F. App’x 591 (6th Cir. 2003),
Case No. 2:01-CR-30]. The Court denied Petitioner’s later-filed motion to vacate, set aside, or
correct a sentence under 28 U.S.C. § 2255 (Case Nos. 2:01-CR-30, 2:04-CV-171), but issued a
certificate of appealability [Doc. 83, Case No. 2:01-CR-30]. The Sixth Circuit affirmed this
Court’s § 2255 decision [Doc. 88, Rice v. United States, No. 07-6292 (6th Cir. Apr. 23, 2009)
(order), Case No. 2:01-CR-30].
Petitioner then returned to the Sixth Circuit with a counseled application for an order
authorizing this Court to consider a second or successive § 2255 motion, based on a claim that his
career-offender sentence under the United States Sentencing Guidelines (“USSG”) was unlawful
under Johnson v. United States, 135 S. Ct. 2551 (2015) (holding that the residual clause in the
Armed Career Criminal Act (“ACCA”) is unconstitutionally vague) [Doc. 1]. 1 The United States
opposed an order authorizing Petitioner to file a second or successive § 2255 motion [Doc. 2];
nonetheless, Petitioner obtained such an order [Doc. 4]. In the order, the Sixth Circuit instructed
this Court to hold in abeyance Petitioner’s second or successive § 2255 motion, pending a decision
in Beckles v. United States, which would determine whether “Johnson requires the invalidation of
the career offender guideline’s residual clause in cases on collateral review” [Id. at 2]. This Court
stayed the § 2255 motion on January 26, 2017 [Doc. 6].
On March 6, 2017, the Supreme Court decided Beckles, holding that the advisory
guidelines “are not subject to a vagueness challenge . . . and that § 4B1.2(a)’s residual clause is
not void for vagueness.” 137 S. Ct. 886, 894 (2017). This Court then entered an order, informing
the parties that because the Johnson decision did not undermine sentences based on guidelines
enhancements and because the Court believed that a summary denial was the appropriate
disposition of Petitioner’s second or successive § 2255 motion, the Court would follow that course
of action, unless the parties timely filed a motion addressing the Court’s contemplated disposition
of the case [Doc. 7].
Petitioner did not file a motion with the Court. Instead, Petitioner provided the Court with
a supplement to his second or successive § 2255 motion [Doc. 10]. In the supplement, Petitioner
argued that Beckles had no effect on his Johnson claim because Beckles addressed advisory
guidelines sentencing in place since United States v. Booker, 543 U.S. 220, 245 (2005) (holding
that the guidelines were “effectively advisory”), whereas he is challenging a pre-Booker sentence,
issued when the guidelines were mandatory [Id.]. The United States responded in opposition to
All subsequent docket number citations in this Opinion refer to Case No. 2:17-CV-16, unless
otherwise indicated.
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the supplement [Doc. 13], and Petitioner replied to that response [Doc. 17]. Petitioner’s second or
successive 28 U.S.C. § 2255 motion, as supplemented [Docs. 1, 10], is ripe for review and
resolution.
On May 31, 2000, in two separate recorded transactions occurring at 8:30 P.M. and 9:30
P.M., Petitioner sold a total of six rocks of crack cocaine to a confidential informant. At trial, the
confidential informant identified Petitioner as the person who had sold him six rocks of cocaine.
The jury convicted Petitioner of aiding and abetting the distribution of cocaine base (crack) in
violation of 18 U.S.C. § 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2. Petitioner was sentenced under
USSG § 4B1.1 as a career offender based on two prior felony convictions—one for a conviction
for attempted sodomy and one for heroin distribution. 2
Petitioner asserts in his second or successive § 2255 motion and supplement that he is not
subject to an enhanced sentence as a career offender because his prior conviction for attempted
sodomy no longer qualifies as a “crime of violence” under USSG § 4B1.2(a) and that Beckles is
inapposite to his claim. The United States argues in its response to the supplement that Johnson
involved the ACCA and did not address the Sentencing Guidelines’ career-offender provisions
(the provisions under which Petitioner was sentenced); that the Supreme Court has not made
Johnson retroactive to guidelines sentences on collateral review and has never recognized the
precise right here asserted, much less deemed it retroactively applicable on direct review; and that
Johnson, thus, offers Petitioner no basis for § 2255 relief from his career-offender enhanced
sentence.
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A defendant qualifies for sentencing as a career offender if: (1) he was at least eighteen years old at the
time he committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is
either a crime of violence or a controlled substance offense; and (3) he has at least two prior felony
convictions of either a crime of violence or a controlled substance offense. USSG § 4B1.1(a).
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The Court finds that Petitioner’s claim is foreclosed by the decisions in both Beckles and
Raybon v. United States, 867 F.3d 625 (6th Cir. 2017). Section 2255(f) establishes a one-year
period for filing a motion to vacate from four dates; the relevant one here is “the date on which the
right asserted was initially recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively applicable to cases on collateral review.”
28 U.S.C. § 2255(f)(3). In Raybon, the Sixth Circuit explained that the law was unsettled as to
whether Johnson applies to the residual clause in the mandatory Guidelines. Raybon, 867 F.3d at
630 (“Because [Johnson’s application to mandatory sentencing guidelines] is an open question, it
is not a ‘right’ that ‘has been newly recognized by the Supreme Court’ let alone one that was ‘made
retroactively applicable to cases on collateral review.’”) (quoting § 2255(f)(3)).
Thus, in Raybon, the Sixth Circuit determined that the rule in Johnson did not create a right
for those sentenced under the residual clause of the mandatory Guidelines in the pre-Booker era
that was made retroactive, and that it does not restart the one-year statute of limitation in §
2255(f)(3). Id. at 629-30; see also Chubb v. United States, 707 F. App’x 388 (6th Cir. 2018)
(finding a § 2255 motion time-barred because Johnson did not recognize a right applicable to
petitioners who were sentenced under the pre-Booker mandatory Guidelines residual clause).
This means that Petitioner cannot take advantage of the date Johnson was issued to measure
the one-year statute of limitations for filing his second or successive motion to vacate. Petitioner’s
statute of limitation for filing a § 2255 motion expired on September 2, 2004. (Petitioner’s direct
appeal was denied July 2, 2003, and his conviction became final on September 2, 2003, the first
day that was not a federal Holiday after the lapse of the 90-day period to petition the Supreme
Court for a writ of certiorari.). Accordingly, Petitioner’s second or successive motion to vacate is
time-barred. See Chambers v. United States, 763 F. App’x 514, 516 (6th Cir. 2019) (finding that
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the movant cannot use the date of the Johnson decision to trigger a new statute of limitations under
§ 2255(f)(3) because Johnson was not applicable to his pre-Booker mandatory Guidelines
sentence) (relying on Raybon as binding and on Chubb as instructive); Polanco v. United States,
No. CV 16-3769 (KSH), 2019 WL 2385889, at *3 (D.N.J. June 6, 2019) (finding an authorized
second or successive § 2255 motion raising the same Johnson-derived claim based on the
mandatory Guidelines residual clause to be untimely under controlling circuit precedent).
Accordingly, a separate judgment will enter dismissing Petitioner’s second or successive
§ 2255 motion to vacate, set aside, or correct sentence as untimely.
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability (“COA”) should issue. A COA should issue if a petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner
whose claims have been rejected on a procedural basis must demonstrate that reasonable jurists
would debate the correctness of the Court’s procedural ruling. Slack v. McDaniel, 529 U.S. 473,
484 (2000); Porterfield v. Bell, 258 F.3d 484, 485-86 (6th Cir. 2001). If there is a plain procedural
bar and the district court is correct to invoke it to resolve the case, and a reasonable jurist could
not find that either that the dismissal was error or that a petitioner should be allowed to proceed
further, a COA should not issue. Slack, 529 at 484.
This Court is bound to follow Raybon, though that holding was called into question by the
concurrence in Chambers, 763 F. App’x at 519-28 (Moore, J., concurring in judgment, agreeing
that Raybon is binding but commenting that the decision was “wrong” and should be
‘overturn[ed]”). Yet, the Sixth Circuit declined recently to revisit Chambers. See Chambers v.
United States, No. 18-3298 (6th Cir. June 26, 2019) (order denying petition for rehearing en banc).
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In this case, the procedural bar is plain and, thus, the Court finds that reasonable jurists
could not find that its ruling on the timeliness of the motion was debatable or wrong. Because
reasonable jurists could not disagree with the Court’s denial of the § 2255 motion as time-barred
and could not conclude that matter is “adequate to deserve encouragement to proceed further,”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003), the Court will DENY issuance of a COA.
IT IS SO ORDERED.
ENTER:
s/ Leon Jordan
United States District Judge
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