Miller v. USA

Filing 7

MEMORANDUM DECISION AND ORDER granting 4 United States' Motion to Dismiss, and Petitioner's 1 Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28:2255 is DISMISSED for lack of jurisdiction. Signed by Judge Dale A. Kimball on 7/10/17. (dla)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

SURMAN MILLER,
Petitioner,

MEMORANDUM DECISION
AND ORDER

vs.
Case No. 2:16CV589DAK
UNITED STATES OF AMERICA,
Judge Dale A. Kimball
Respondent.

This matter is before the court on the United States’ Motion to Dismiss Petitioner’s
Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. On August 21,
2002, Petitioner Surman Miller was indicted for violations of 18 U.S.C. §§ 2243(a) and 1153(a)
for sexual abuse of a minor while within Indian Country. Petitioner pleaded guilty to the charges
and, on March 1, 2004, the Honorable David K. Winder sentenced Petitioner to 188 months
incarceration with the Bureau of Prisons and a 36-month term of supervised release. Petitioner
appealed, and the Tenth Circuit affirmed his 188-month sentence. On August 18, 2016,
Petitioner was released from prison and his term of supervised release began. On March 2, 2017,
Petitioner admitted to a violation of supervised release and the court placed Petitioner in the
custody of the Bureau of Prisons for a term of twelve months and a day, with a 48-month term of
supervised release.
In its motion, the United States argues that the court should dismiss Petitioner’s 28

U.S.C. § 2255 motion because, among other things, Johnson v. United States, 135 S. Ct. 2551
(2015), does not apply to Petitioner’s case and Petitioner’s petition is untimely. Because the
timeliness of Petitioner’s petition affects the court’s jurisdiction to entertain the merits of the
petition, the court will address timeliness first. In addition, because the court concludes that
Petitioner’s petition is not timely, the court will not address the other arguments in the motion to
dismiss.
“A district court is authorized to modify a Defendant's sentence only in specified
instances where Congress has expressly granted the court jurisdiction to do so.” United States v.
Blackwell, 81 F.3d 945, 947 (10th Cir. 1996). Under 28 U.S.C. § 2255, a prisoner in custody can
move the court to vacate, set aside, or correct a sentence if the sentence was unconstitutional,
illegal, in excess of the maximum authorized by law, or otherwise subject to collateral attack. A
one-year statute of limitation applies to motions brought under § 2255.
The limitation period shall run from the latest of (1) the date on which the judgment of
conviction becomes final; (2) the date on which the impediment to making a motion
created by governmental action in violation of the Constitution or laws of the United
States is removed, if the movant was prevented from making a motion by such
governmental action; (3) 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; or (4) the date on which the
facts supporting the claim or claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f).
The Judgment in Petitioner’s underlying criminal case was entered on March 1, 2004.
Petitioner filed an appeal, which was decided on November 8, 2004. Therefore, this court’s
Judgment became final, and the one-year statute of limitations began to run, on that date. Absent
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an event restarting the one-year period, Petitioner would be time barred from filing a petition
after November 8, 2005, which would include the § 2255 petition he filed on June 13, 2016.
However, Petitioner argues that the Supreme Court decision in Johnson, decided June 26,
2015, asserted a new right that is retroactively applicable to Petitioner’s case and that restarted
the one-year period under 28 U.S.C. § 2255(f)(3). Petitioner is correct that Johnson asserted a
new right that was made retroactively applicable to cases on collateral review in Welch v. United
States, 136 S. Ct. 1257 (2016). However, the right recognized by the Supreme Court in Johnson
does not apply to Petitioner’s case. In Johnson, the Supreme Court held that “imposing an
increased sentence under the residual clause of the Armed Career Criminal Act [“ACCA”]
violates the Constitution’s guarantee of due process” because the residual clause of the ACCA is
unconstitutionally vague. Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). Petitioner’s
sentence was increased under the residual clause of the United States Sentencing Commission
Guidelines (“USSG”) § 4B1.2, not under the residual clause of the ACCA. Therefore, the right
recognized in Johnson does not apply to Petitioner’s case.
But Petitioner argues that the language in the residual clause of USSG § 4B1.2 is
“virtually identical” to the language in the residual clause of the ACCA and that the right
recognized in Johnson should apply to his case. See United States v. Madrid, 805 F.3d 1204,
1210 (10th Cir. 2015). As support for his position, Petitioner cites United States v. Madrid,
where the Tenth Circuit relied on the reasoning in Johnson to “hold that the residual clause of §
4B1.2(a)(2) is void for vagueness.” Id. at 1211.
The court disagrees with Petitioner’s argument for two major reasons. First, a right

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recognized by the Tenth Circuit is not sufficient under the terms of the relevant statute to grant
the court the jurisdiction to modify Petitioner’s sentence. See 28 U.S.C. § 2255(f)(3) (requiring a
right to be “newly recognized by the Supreme Court and made retroactively applicable to cases
on collateral review” (emphasis added)). In a recent case involving whether Johnson should be
extended to invalidate 18 U.S.C. § 924(c), the Tenth Circuit explained that “the question is not
whether a court of appeals has recognized the right at issue, but instead whether the Supreme
Court itself has done so.” United States v. Autobee, 2017 WL 2871893, *3 (10th Cir. July 6,
2017) (unpublished). Accordingly, the Tenth Circuit’s extension of Johnson to the sentencing
guidelines in Madrid is not determinative.
Second, even assuming a right recognized by the Tenth Circuit was sufficient to grant the
court jurisdiction to modify Petitioner’s sentence, Madrid is not directly applicable to Petitioner’s
case. The defendant in Madrid was sentenced under USSG 4B1.2 after the Supreme Court, in
United States v. Booker, 543 U.S. 220 (2005), decided that the sentencing guidelines are advisory
and not mandatory. In Beckles v. United States, the Supreme Court addressed whether the
holding in Johnson applies to the advisory sentencing guidelines and 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 is not void for vagueness.” 137 S. Ct. 886, 895 (2017). In
determining that Johnson did not apply to the post-Booker advisory sentencing guidelines, the
Supreme Court overruled Madrid. See United States v. Pena, No. 16-6340, 2017 WL 1826848,
at *1 (10th Cir. May 4, 2017) (recognizing that “the U.S. Supreme Court overruled [Madrid] in
Beckles v. United States”). The Supreme Court also recognized that it was not determining

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whether Johnson applied to pre-Booker mandatory guidelines. Beckles, 137 S. Ct. at 903 n.4
(Sotomayor, J., concurring). Neither the Supreme Court in Beckles nor the Tenth Circuit in
Madrid directly addressed “the question whether defendants sentenced to terms of imprisonment
before [the Supreme Court’s] decision in United States v. Booker, 543 U.S. 220 (2005) . . . may
mount vagueness attacks on their sentences.” Beckles, 137 S. Ct. at 903 n.4 (Sotomayor, J.,
concurring).
In this case, Petitioner was sentenced under the mandatory sentencing guidelines before
the Supreme Court’s decision in Booker. The court concludes that neither the Tenth Circuit’s
decision in Madrid nor the Supreme Court’s decision in Beckles directly applies to Petitioner’s
case. Because neither the Supreme Court nor the Tenth Circuit has directly recognized a right to
modify a sentence increased under the residual clause of USSG § 4B1.2 before Booker, the court
concludes that Petitioner’s § 2255 motion is untimely and this court lacks jurisdiction to modify
Petitioner’s sentence. Accordingly, the court grants the United States’ Motion to Dismiss
Petitioner’s § 2255 motion.
Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings for the United
States District Courts, “[t]he district court must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant.” Under 28 U.S.C. § 2253, a certificate of
appealability "may issue . . . only if the applicant has made a substantial showing of the denial of
a constitutional right." 28 U.S.C. § 2253(c)(2); United States v. Silva, 430 F.3d 1096, 1100 (10th
Cir.2005) (quoting 28 U.S.C. § 2253(c)(2)). The court finds that “reasonable jurists could not
debate whether the petition should have been resolved in a different manner or that the issues

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presented were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). The court concludes that Petitioner has not made a substantial
showing of the denial of a constitutional right and, therefore, declines to issue a Certificate of
Appealability. If Petitioner wishes to appeal the court’s ruling on his motion, he must seek a
certificate from the court of appeals under Federal Rule of Appellate Procedure 22.
Accordingly, the United States’ Motion to Dismiss is GRANTED and Petitioner’s
Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 is DISMISSED
for lack of jurisdiction.
DATED this 10th day of July, 2017.
BY THE COURT:

DALE A. KIMBALL
United States District Judge

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