Hamilton v. USA

Filing 12

Memorandum Opinion and Order denying 2 MOTION to Vacate under 28 U.S.C. 2255 and denying the certificate of appealability. (Ordered by Judge Reed C. O'Connor on 10/26/2017) (ykp)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TOMMIE JOE HAMILTON,
Movant,
V.
UNITED STATES OF AMERICA,
Respondent.

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Civil No. 3:16-CV-1730-O
(No. 3:09-CR-234-O-(01))

OPINION AND ORDER
Movant, Tommie Joe Hamilton, a federal prisoner, filed a motion to vacate, set aside, or
correct his federal sentence pursuant to 28 U.S.C. § 2255. After considering his Section 2255
motion (ECF No. 2), the government’s response (ECF No. 9), and Movant’s replies (ECF Nos. 10
& 11), the Court concludes that the Section 2255 motion should be denied as meritless.
Applicable Background
Movant pleaded guilty to bank robbery. See No. 3:09-cr-234-O (01), ECF No. 12. At
sentencing, applying the 2009 United States Sentencing Guidelines (“U.S.S.G.”), the Court found
Movant to be a career offender under U.S.S.G. § 4B1.1 because he was at least eighteen when he
committed the bank robberies, the bank robberies were crimes of violence, and he had at least two
prior felony convictions for crimes of violence. See U.S.S.G. § 4B1.1(a). The Court sentenced him
to 120 months in prison with five years of supervised release, well below the guideline range. See
No. 3:09-cr-234-O (01), ECF No. 23.
Movant’s direct appeal was dismissed, see United States v. Hamilton, No. 10-10098 (5th Cir.
Jan. 25, 2011), and he later filed this 28 U.S.C. § 2255 motion. See ECF No. 2. Movant claims that
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the Court erred when it found him to be a career offender under the U.S.S.G. for two reasons. First,
he asserts that U.S.S.G. § 4B1.2’s definition of “crime of violence” is unconstitutionally vague in
the wake of Johnson v. United States, 135 S. Ct. 2551 (2015). See ECF No. 2 at 8, 11-13. Second,
he argues that the Court erred when it counted his previous robbery convictions as prior crimes of
violence because they were “outdated” and “unreliable.” See id. at 9.
Discussion
Movant’s claims are without merit. Movant’s claim that U.S.S.G. § 4B1.2’s definition of
“crime of violence” is void for vagueness after Johnson is foreclosed by the Supreme Court’s
decision in Beckles v. United States, 137 S. Ct. 889, 892 (2017). In Johnson, the Supreme Court
held “that imposing an increased sentence under the residual clause of the Armed Career Criminal
Act,” 18 U.S.C. § 924(e)(2)(B)(ii) – which clause defines a “violent felony” as one “involv[ing]
conduct that presents a serious potential risk of physical injury to another” – “violates the
Constitution’s guarantee of due process.” 135 S. Ct. at 2563. But Beckles held that, unlike the
Armed Career Criminal Act at issue in Johnson, “the Guidelines are not subject to a vagueness
challenge under the Due Process Clause.” 137 S. Ct. at 892; see also United States v. Martinez, 682
F. App’x 304, 304 (5th Cir. 2017) (Beckles “squarely held that the Sentencing Guidelines are not
subject to vagueness challenges under the Due Process clause.”). So, there is no merit to Movant’s
claim that he is entitled to relief under Johnson.
Nor is there merit to Movant’s claim–raised for the first time after Beckles was
announced–that Beckles is beside the point because he intended only to challenge a “criminal
statute,” not any definition contained in the U.S.S.G. See ECF No. 10 (“It is without doubt . . . that
Movant’s ground of error and his legal discussion in both his motion and amended motion . . . are

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not in any way [premised] on [the U.S.S.G.], but are [premised] on this vague and unconstitutional
statute U.S.S.G. § 4B1.1.”). Movant’s Section 2255 motion made plain that his challenge was to the
U.S.S.G.’s definition of crime of violence. See ECF No. 2 at 9 (arguing that “it stretches credulity
to say that, this unconstitutional residual clause of the guideline[s] could have been applied to
[M]ovant in a manner or way that was ‘constitutional’ when the courts cannot do so in the context
of the ACCA.”). And, to the extent that Movant suggests that the career offender provision in
U.S.S.G. 4B1.1 is a “statute,” he is mistaken. See Beckles, 137 S. Ct. at 892 (“[T]he advisory
Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the
exercise of a court’s discretion in choosing an appropriate sentence within the statutory range.”).
Thus there is no merit to Movant’s suggestion that the career offender provision in the U.S.S.G. is
subject to vagueness challenges under Johnson.
Movant’s second claim–that the Court misapplied Section 4B1.1 because his prior robbery
convictions were too “outdated” and “unreliable” to count as violent felonies–is not cognizable in
this Section 2255 proceeding. See United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999)
(“Williamson attacks head-on the sentencing court’s application of § 4B1.1,” but “Williamson
should have raised this argument on direct appeal; it is not cognizable now.”). “Section 2255
motions may raise only constitutional errors and other injures that could not have been raised on
direct appeal that will result in a miscarriage of justice if left unaddressed,” and “[m]isapplications
of the Sentencing Guidelines fall into neither category and hence are not cognizable in § 2255
motions.” Id. (citation omitted). Because Movant’s second claim is a head-on attack to the Court’s
application of U.S.S.G. § 4B1.1, “it is not cognizable now.” Williamson, 183 at 462.
Evidentiary Hearing

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Upon review of the motion to vacate and the files and records of this case, an evidentiary
hearing appears unnecessary. No evidentiary hearing is required if “the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).
In this instance, the matters reviewed by the Court conclusively show that Movant is entitled to no
relief.
Certificate of Appealability
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure
22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c),
the Court denies a certificate of appealability. Movant has failed to show (1) that reasonable jurists
would find this Court’s “assessment of the constitutional claims debatable or wrong,” or (2) that
reasonable jurists would find “it debatable whether the petition states a valid claim of the denial of
a constitutional right” and “debatable whether [this Court] was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 48 (2000).
In the event that Movant elects to file a notice of appeal, the Court notes that he will need to
pay the appellate filing fee or submit a motion to proceed in forma pauperis.
Conclusion
This Section 2255 action is DENIED as meritless.
SO ORDERED this 26th day of October, 2017.

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Reed O’Connor
UNITED STATES DISTRICT JUDGE

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