Collins v. United States of America

Filing 192

MEMORANDUM OPINION AND ORDER: The Court OVERRULES movant's objection to the magistrate judge's PF&R. The court ADOPTS the factual and legal analysis contained within the 190 PF&R; DENIES Movant's 168 Second or Successive Motion t o Correct Sentence Under 28 U.S.C. § 2255; DISMISSES movant's action without prejudice; and DIRECTS the Clerk to remove this matter from the court's docket. The court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 7/9/2018. (cc: counsel of record) (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
WARREN COLLINS,
Movant,
v.

CIVIL ACTION NO. 1:16-05807
(Criminal No. 1:02-00102)

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
Pending before the court is movant’s “Second or Successive
Motion to Correct Sentence Under 28 U.S.C. § 2255.”
168.

ECF No.

By Standing Order, this matter was referred to United

States Magistrate Judge Omar J. Aboulhosn for submission of
proposed findings and recommendation (“PF&R”) for disposition
pursuant to 28 U.S.C. 636(b)(1)(b).

ECF No. 170.

magistrate judge submitted his PF&R on May 3, 2018.

The

190.

ECF No.

In the PF&R, Judge Aboulhosn recommended that the court

deny movant’s motion and remove this matter from the court’s
docket.
In accordance with the provisions of 28 U.S.C. § 636(b),
petitioner was allotted fourteen days, plus three mailing days,
in which to file any objections to Magistrate Judge Aboulhosn’s
Findings and Recommendation.

The failure to file such

objections constitutes a waiver of the right to a de novo review

by this court.
1989).

Snyder v. Ridenour, 889 F.2d 1363 (4th Cir.

It is worth noting that this court need not conduct a de

novo review when a party “makes general and conclusory
objections that do not direct the court to a specific error in
the magistrate's proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
through counsel, filed objections on May 16, 2018.
I.

Movant,

ECF No. 191.

BACKGROUND

After his indictment and a May 2003 jury trial, Warren
Collins was convicted in this court of two counts: 1) conspiracy
to distribute cocaine base in violation of 21 U.S.C. § 846; and
2) possession with intent to distribute cocaine base in
violation of 21 U.S.C. § 841(a)(1).

See United States v.

Collins, Criminal Action No. 1:02-00102, ECF No. 13.

At

movant’s sentencing hearing in December 2013, this court
determined that he met the criteria for career offender status
pursuant to United States Sentencing Guideline § 4B1.1 because
of two prior convictions: 1) unlawful wounding; and 2) a
controlled substance offense.

Consistent with the Guidelines,

movant’s base offense level of 20 was increased to a total
offense level of 32, and he was sentenced to a 216-month term of
imprisonment followed by a three-year term of supervised
release.

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The movant filed a motion for a new trial, appealed his
conviction to the Fourth Circuit Court of Appeals, filed a
Section 3582 motion for reduced sentenced based on a reduction
in applicable sentencing guidelines regarding cocaine base, and
filed his original § 2255 motion.

Each motion was either denied

or this court’s sentence affirmed.

Id. at ECF Nos. 89, 99, 100,

151, 155, 156; United States v. Collins, 412 F.3d 515 (4th Cir.
2005).

In July 2016, the Fourth Circuit granted movant’s motion

to file a second § 2255 claim in light of the Supreme Court’s
decision in Johnson v. United States, -- U.S. --, 135 S. Ct.
2551 (2015), and the Federal Public Defender was appointed to
represent him.

ECF Nos. 165, 174, 175.
II.

This action followed.

DISCUSSION

To explain movant’s action, first the court must explain
the present legal landscape.

Under 28 U.S.C. § 2255, a prisoner

may move to have his sentence vacated or corrected if it “was
imposed in violation of the Constitution or laws of the United
States.”

28 U.S.C. § 2255(a).

A § 2255 motion must be filed

within one year from the date on which a petitioner's conviction
becomes final unless an exception applies.

Id. at § 2255(f)(1).

Movant’s conviction occurred in 2003 (more than one year ago),
thus he must rely upon an exception.

Movant relies on the

exception established by § 2255(f)(3), whereby a motion is
timely if (1) it “assert[s] . . . [a] right . . . newly
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recognized by the Supreme Court,” (2) the movant’s action arises
within one year from “the date on which the right asserted was
initially recognized by the Supreme Court,” and (3) the Supreme
Court or controlling Court of Appeals has declared the right
retroactively applicable on collateral review.

Id. at §

2255(f)(3); Dodd v. United States, 545 U.S. 353, 358–59 (2005).
Only the Supreme Court, not the controlling Court of Appeals,
may “recognize” a new right under § 2255(f)(3).

See Dodd, 545

U.S. at 357–59.
Pertinently, the Armed Career Criminal Act (“ACCA”) defined
a “violent felony” as a crime punishable by imprisonment for a
term exceeding one year “that – (i) has an element the use,
attempted use, or threatened use of physical force against the
person of another; or (ii) is burglary, arson, or extortion,
involves the use of explosives or otherwise involves conduct
that presents a serious potential risk of physical injury to
another.”

18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added).

The

underlined portion is known as the ACCA’s “residual clause.”
The Supreme Court in Johnson v. United States held that this
“residual clause” was unconstitutionally vague, and in doing so
established a recognized right meeting the first prong of §
2255(f)(3).

135 S. Ct. 2551.

The Supreme Court later announced

that this right was retroactively applicable, Welch v. United
States, 136 S. Ct. 1257, 1265 (2016), satisfying the third prong
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of § 2255(f)(3).

Therefore, so long as a movant complies with

the one-year limitation created by prong two of § 2255(f)(3),
they may challenge the constitutionality of a conviction
established under the ACCA’s residual clause.
Textually identical residual clauses to the ACCA’s residual
clause are included in a number of other criminal statutes.
Recently, the Supreme Court in Beckles v. United States held
that advisory guideline sentences that include residual clauses
that are textually identical to the ACCA “are not subject to
vagueness challenges under the Due Process Clause.”
886, 890 (2017).

137 S. Ct.

However, the Supreme Court confined its

opinion only to sentences that are advisory, not mandatory, upon
district courts.

See id. at 890, 892, 896, 897; see also id. at

903 (Sotomayor, J., concurring) (stating that the majority
opinion “leaves open” the question of whether mandatory
Guideline sentences are subject to vagueness challenges).
Therefore, this created ambiguity for instances of textually
identical residual clauses related to mandatory sentences.

This

includes all criminal sentences that occurred before the Supreme
Court’s 2005 ruling in United States v. Booker, 543 U.S. 220
(2005), which determined that the Guidelines were no longer
mandatory upon district courts.
Filling this void, the Fourth Circuit construed the right
established in Johnson to apply only to the ACCA’s residual
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clause and not to other mandatory residual clauses.

See United

States v. Brown, 868 F.3d 297, 304 (4th Cir. 2017).

The Fourth

Circuit observed, “[i]f the Supreme Court left open the question
of whether Petitioner's asserted right exists, [then] the
Supreme Court has not ‘recognized’ that right.”

Id. at 302; see

also Hamilton v. United States, No. 1:16-CV-05806, 2017 WL
7049171, at *3 (S.D.W. Va. Dec. 11, 2017) (Eifert Mag. J.),
report and recommendation adopted, No. CR 1:95-00174, 2018 WL
539332 (S.D.W. Va. Jan. 24, 2018) (“Therefore, the Fourth
Circuit held that at least for purposes of collateral review,
courts must wait for the Supreme Court to rule that the residual
clause in the mandatory version of the Guidelines is
unconstitutionally vague.”).

Because no recognized right has

been created outside Johnson and the ACCA’s residual clause,
Brown’s § 2255 motion was dismissed as untimely because it did
not satisfy the exception of § 2255(f)(3).
Movant advances the same argument rejected by the Fourth
Circuit in Brown – that the recognized right in Johnson should
be extrapolated to Sentencing Guideline § 4B1.1 whereby career
offender status is determined.

Specifically, movant claims that

his prior conviction for malicious wounding is no longer an
applicable conviction for career offender designation because it
fell under the residual clause of Guideline § 4B1.1.

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Moreover,

movant’s sentence was mandatory because it occurred in 2003 preBooker.
Nevertheless, as detailed above, the Fourth Circuit has
determined that the recognized right under Johnson may not be
applied to other mandatory and textually identical residual
clauses.

See Brown, 868 F.3d 297.

Movant concedes as much in

his objections, which merely seek “to preserve the issue for
further review.”

ECF No. 191 at p.2.

Therefore, since movant’s

dispute is with Brown and not the magistrate judge, the court
need not engage in a de novo review or digress into a further
discussion to resolve this motion.
48.

See Orpiano, 687 F.2d at 47–

Accordingly, the court dismisses movant’s motion as

untimely.
Additionally, the court has considered whether to grant a
certificate of appealability.

See 28 U.S.C. § 2253(c).

A

certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.”
2253(c)(2).

28 U.S.C. §

The standard is satisfied only upon a showing that

reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683-84 (4th Cir. 2001).

The court concludes that the governing
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standard is not satisfied in this instance.

Accordingly, the

court DENIES a certificate of appealability.
III. CONCLUSION
Accordingly, the court OVERRULES movant’s objection to the
magistrate judge’s PF&R.

The court ADOPTS the factual and legal

analysis contained within the PF&R; DENIES Movant’s “Second or
Successive Motion to Correct Sentence Under 28 U.S.C. § 2255,”
(ECF No. 168); DISMISSES movant’s action without prejudice; and
DIRECTS the Clerk to remove this matter from the court’s docket.
The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to counsel of record.
IT IS SO ORDERED this 9th day of July, 2018.
ENTER:
David A. Faber
Senior United States District Judge

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