Edwards v. USA
ORDER DENYING PETITIONERS § 2255 MOTION on Motion to Vacate, Set Aside or Correct Sentence (2255): Certificate of Appealability is denied; Clerk directed to enter judgment pursuant to FRCP 58; NOA due within 60 days. Signed by Senior Judge Frederick P. Stamp, Jr on 4/6/17. (copy to Petitioner by cert. mail)(soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
UNITED STATES OF AMERICA,
Civil Action No. 5:16CV91
(Criminal Action No. 5:11CR21-01)
ORDER DENYING PETITIONER’S § 2255 MOTION
On June 23, 2016, the petitioner filed a motion under 28
U.S.C. § 2255 challenging the validity of his conviction and
sentence. ECF Nos. 1/77. The petitioner was sentenced as a Career
Criminal under the United States Sentencing Guidelines (“U.S.S.G.”)
He argues that at least one of his predicate offenses was
defined as a “crime of violence” under the so-called residual
clause of U.S.S.G. § 4B1.2(a)(2) and that, based on the United
States Supreme Court’s ruling in Johnson v. United States, 135 S.
Ct. 2551 (2015), § 4B1.2(a)(2)’s residual clause is void for
vagueness under the Fifth Amendment.
In Beckles v. United States,
137 S. Ct. 886 (2017), the Supreme Court held that § 4B1.2(a)(2)’s
residual clause is not unconstitutional because the Sentencing
Guidelines “are not amendable to a vagueness challenge.”
Accordingly, the petitioner’s motion (ECF No. 1/77) must be
Further, Rule 11(a) of the Rules Governing § 2254 and § 2255
cases provides that the district court “must issue or deny a
certificate of appealability when it enters a final order adverse
to the applicant” in such cases.
This order is a final order
adverse to the petitioner in a case in which 28 U.S.C. § 2253(c)(1)
requires issuance of a certificate of appealability to take an
certificate of appealability in this matter.
Court finds that the petitioner fails to make a “substantial
showing of the denial of a constitutional right.”
See 28 U.S.C.
assessment of the constitutional claims by the district court is
debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable.
Cockrell, 537 U.S. 322, 336-38 (2003).
This Court concludes that,
based on the Supreme Court’s holding in Beckles, reasonable jurists
would not find this Court’s ruling to be debatable.
the petitioner is DENIED a certificate of appealability by this
The petitioner may, however, request a circuit
judge of the United States Court of Appeals for the Fourth Circuit
to issue a certificate of appealability.
Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made, he is ADVISED that he
must file a notice of appeal with the Clerk of this Court within 60
days after the date of the entry of this order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this order to the
pro se petitioner by certified mail and to counsel of record
Pursuant to Federal Rule of Civil Procedure 58, the Clerk
is DIRECTED to enter judgment on this matter.
April 6, 2017
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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