Morgan v. USA

Filing 4

ORDER: Motion to vacate dismissed. COA denied. (Ordered by Judge John McBryde on 6/27/2016) (wrb)

IN

DAVID CLYDE MORGAN,

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Movant,

vs.
UNITED STATES OF AMERICA,
Respondent.

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NO. 4:16-CV-571-A
(NO. 4:02-CR-144-A)

0 R D E R

The court has received and reviewed the motion of David
Clyde Morgan under 28 U.S.C.

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2255 to vacate, set aside, or

correct sentence and finds that the motion should be denied.
Movant alleges that his claim is based on a new rule of
constitutional law made retroactive to cases on collateral
review. Specifically, he relies on Johnson v. United States, 135
S. Ct. 2551 (2015). He says that he was sentenced as a career
offender and that his underlying robbery conviction no longer
counts as a crime of violence. This is the best the court can
discern from the extremely conclusory statements made in the
motion.' In its entirety, the substance of the motion is as
follows:
Ground One: Due process Johnson issue under the Fifth
Amendment of the United States Constitution.
Supporting FACTS: Sentenced as Career Offender and one
of the qualifying crimes used to determine that status
was a Tx simple robbery conviction which only qualified
as a crime of violence under now unconstitutional
'Movant makes no attempt to meet his burden under§ 2255.
See Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980).

residual clause.
Ground Two: [Ineffective] assistance of [counsel] to
challenge residual clause, or [career] offender
designation with regard to separation of counts of
Florida convictions and advised there were no appeal
issues in the regard for above mentioned.
Doc. 2 1.
Giving Morgan the benefit of the doubt, the court assumes
that he is contending that Johnson has potential applicability to
the prior felony conviction he references because of the presence
of a residual clause ("otherwise involves conduct that presents a
serious potential risk of physical injury to another") in
4B1.2(a) (2)

similar to the residual clause in 18 U.S.C.

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924(e) (1) with which the Supreme Court was concerned in Johnson.
That is, he appears to be contending that a prior crime of
violence came within the residual clause of

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4B1. 2 (a) (2) . But,

such contention would lack merit for at least two reasons.
First, under Fifth Circuit law "a defendant cannot bring a
vagueness challenge against a Sentencing Guideline because a
defendant is not entitled to notice of where within the statutory
range the guideline sentence will fall." See In re Arnick, No.
16-10328, 2016 WL 3383487, at *1 (5th Cir. June 17, 2016) (per
curiam); United States v. Wilson,

622 F. App•x 393, 405 n.51 (5th

Cir. 2015); see also United States v. Pearson, 910 F.2d 221, 223
(5th Cir. 1990) (citing United States v. Jones,

905 F.2d 867

(5th

Cir. 1990)).

'The "Doc." reference is to the number of the item on the
docket in this civil action.
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Second, even if USSG §4Bl.2 (a) (2) could be challenged for
vagueness in some circumstances, it is not subject to such a
challenge as to the offense of robbery because the commentary
under §4B1.2 expressly includes "robbery" as a "crime of
violence."

USSG §4Bl. 2. comment. (n. 1) .

The court ORDERS that Morgan's motion to vacate, set aside,
or correct sentence be, and is hereby, dismissed.
Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule ll(a) of the Rules Governing Section 2255
Proceedings for the United States District Courts, and 28 U.S.C.
§ 2253(c) (2), for the reasons discussed herein, the court further
ORDERS that a certificate of appealability be, and is hereby,
denied, as movant has not made a substantial showing of the
denial of a constitutional right.
SIGNED June 27, 2016.

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