Bell-El v. United States of America

Filing 7

ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255 DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge James D. Todd on 11/15/17. (mbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
ROBERT DEREK BELL-EL,
Movant,
VS.
UNITED STATES OF AMERICA,
Respondent.

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Civ. No. 16-1185-JDT-egb
Crim. No. 05-10077-JDT

ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255
DENYING CERTIFICATE OF APPEALABILITY,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

Before the Court is a motion pursuant to 28 U.S.C. § 2255 filed by the Movant, Robert Derek
Bell-El. For the reasons stated below, the Court DENIES Bell-El’s § 2255 motion.
On February 21, 2006, a federal grand jury returned a superseding indictment against
Bell-El, charging him with three counts of bank robbery in violation of 18 U.S.C. § 2113(a). (No.
05-10077, Crim. ECF No. 15.) Trial began on October 25, 2006, and on October 27, 2006, the jury
returned a verdict of guilty on all three counts. (Id., Crim. ECF Nos. 37, 38, 39, 40 & 41.) At a
hearing on January 25, 2007, the Court found that Bell-El qualified as a career offender under
U.S.S.G. §4B1.1. He was sentenced to concurrent prison terms of 240 months on each of counts one
and two and a consecutive 22-month term of imprisonment on count three, for an effective sentence
of 262 months. (Id., Crim. ECF No. 50; see also id., Sent’g Tr., Crim. ECF No. 59 at PageID
313-18.) The Court also imposed a three-year period of supervised release. (Id.) Judgment was
entered on January 29, 2007 (id., Crim. ECF No. 51), and an amended judgment was entered on

February 6, 2007 (id., Crim. ECF No. 53). On appeal, the Sixth Circuit affirmed. United States v.
Bell, 259 F. App’x 733 (6th Cir. 2008).
Pursuant to 28 U.S.C. § 2255(a),
[a] prisoner in custody under sentence 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, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate, set aside or correct the
sentence.
“A prisoner seeking relief under 28 U.S.C. § 2255 must allege either (1) an error of constitutional
magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was
so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686,
691 (6th Cir. 2006) (internal quotation marks omitted).
After a § 2255 motion is filed, it is reviewed by the Court and, “[i]f it plainly appears from
the motion, any attached exhibits, and the record of prior proceedings that the moving party is not
entitled to relief, the judge must dismiss the motion.” Rule 4(b), Rules Governing § 2255
Proceedings (“§ 2255 Rules”). “If the motion is not dismissed, the judge must order the United
States attorney to file an answer, motion, or other response within a fixed time, or to take other
action the judge may order.” Id.
The sole issue Bell-El raises in the § 2255 motion is whether his sentence is constitutionally
invalid under Johnson v. United States, 135 S. Ct. 2551 (2015). The Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e), requires a fifteen-year sentence for a felon who is convicted of
unlawfully possessing a firearm in violation of 18 U.S.C. § 922(g) and who has three prior
convictions “for a violent felony or a serious drug offense, or both.” Id., § 924(e)(1). The ACCA

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defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year”
that (1) “has as an element the use, attempted use, or threatened use of physical force against the
person of another,” (2) “is burglary, arson, or extortion, involves use of explosives,” or (3)
“otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id.,
§ 924(e)(2)(B)(i)-(ii). The last part of that definition is commonly referred to as the “residual
clause.” In Johnson the Supreme Court held the ACCA’s residual clause was unconstitutionally
vague and that increasing a defendant’s sentence under the clause was, therefore, a denial of due
process. 135 S. Ct. at 2563. The Supreme Court later held the decision in Johnson was retroactive
and thus applicable to cases on collateral review. Welch v. United States, 136 S. Ct. 1257 (2016).
Bell-El was sentenced not under the ACCA but pursuant to the career offender provision of
the U.S. Sentencing Guidelines, U.S.S.G. § 4B1.1. Under that provision, a defendant who is
convicted of “a felony that is either a crime of violence or a controlled substance offense” qualifies
for an increased sentence if he “has at least two prior felony convictions of either a crime of violence
or a controlled substance offense.” § 4B1.1(a). At the time of Bell-El’s sentencing, the definition
of “violent felony” in the career offender guideline contained a residual clause that was identical to
the residual clause in the ACCA. § 4B1.2(a)(2) (2006).1 Bell-El thus contends that his sentence is
invalid because the residual clause in the career offender guideline is also unconstitutionally vague.
Bell-El’s argument is foreclosed by the decision in Beckles v. United States, 137 S. Ct. 886,
892-95 (2017), in which the Supreme Court held “that the advisory Sentencing Guidelines are not
subject to a vagueness challenge under the Due Process Clause and that § 4B1.2(a)’s residual clause
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Following the decision in Johnson, the U.S. Sentencing Commission amended
§ 4B1.2(a)(2) to remove the language that was held to be unconstitutionally vague. See
Amendment 798 (effective Aug. 1, 2016). However, the Commission has declined to make the
amendment retroactive. See U.S.S.G. § 1B1.10(d) (2016).
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is not void for vagueness.” 137 S. Ct. at 895. Bell-El was sentenced under the advisory guidelines,
after the decision in Booker v. United States, 543 U.S. 220 (2005). Therefore, the Court’s prior
determination that he had the requisite number of predicate offenses under § 4B1.2(a) was not
affected by the decision in Johnson.
Bell-El’s § 2255 motion, together with the files and record in this case, “conclusively show
that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also Rule 4(b), § 2255 Rules. A
response from the United States is not necessary. Accordingly, the § 2255 motion is DENIED.
Twenty-eight U.S.C. § 2253(a) requires the district court to evaluate the appealability of its
decision denying a § 2255 motion and to issue a certificate of appealability (COA) “only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); see also Fed. R. App. P. 22(b). No § 2255 movant may appeal without this certificate.
A COA may issue only if the petitioner has made a substantial showing of the denial of a
constitutional right, and the COA must indicate the specific issue(s) which satisfy the required
showing. 28 U.S.C. §§ 2253(c)(2) & (3). A “substantial showing” is made when the movant
demonstrates that “reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotation marks and citation omitted); see also Henley v. Bell, 308 F. App’x 989, 990 (6th
Cir. 2009) (per curiam) (same). A COA does not require a showing that the appeal will succeed.
Miller-El, 537 U.S. at 337; Caldwell v. Lewis, 414 F. App’x 809, 814-15 (6th Cir. 2011) (same).
Courts should not issue a COA as a matter of course. Bradley v. Birkett, 156 F. App’x 771, 773 (6th
Cir. 2005).

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The issues raised in this § 2255 motion are without merit for the reasons previously stated.
Because any appeal by Bell-El on the issue raised in his § 2255 motion does not deserve attention,
the Court DENIES a certificate of appealability.
In order to appeal in forma pauperis in a § 2255 case, and thereby avoid the $505 appellate
filing fee required by 28 U.S.C. §§ 1913 and 1917, a movant must obtain pauper status pursuant to
Federal Rule of Appellate Procedure 24(a). Kincade v. Sparkman, 117 F.3d 949, 951-52 (6th Cir.
1997). Rule 24(a) provides that a party seeking pauper status on appeal must first file a motion in
the district court, along with a supporting affidavit. Fed. R. App. P. 24(a)(1). However, Rule 24(a)
also provides that if the district court certifies that an appeal would not be taken in good faith, or
otherwise denies leave to appeal in forma pauperis, the party must file his motion to proceed in
forma pauperis in the appellate court. See Fed. R. App. P. 24(a)(4)-(5).
For the same reasons the Court denies a certificate of appealability, the Court also
CERTIFIES, pursuant to Federal Rule of Appellate Procedure 24(a), that any appeal in this matter
by Bell-El would not be taken in good faith. Therefore, leave to appeal in forma pauperis is
DENIED. Accordingly, if Bell-El files a notice of appeal, he must also pay the full $505 appellate
filing fee or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit
Court of Appeals.
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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