Donnell v. United States, No. 15-2581 (8th Cir. 2016)
Annotate this CasePetitioner seeks authorization to file a second or successive motion under 28 U.S.C. 2255(h) pursuant to Johnson v. United States. Petitioner challenges a sentence that was imposed in 2008 after the district court applied the career-offender sentencing guideline, USSG 4B1.1, in calculating his advisory sentencing range. Petitioner argues that the residual clause of USSG 4B1.2(a)(2), likewise, is unconstitutionally vague and the constitutional rule that he proposes should be applied retroactively to cases on collateral review. The court denied the motion, concluding that petitioner's motion urges the creation of a second new rule that would apply Johnson and the constitutional vagueness doctrine to a provision of the advisory sentencing guidelines. The court concluded that the successive motion should not be certified “to contain” a new rule made retroactive by the Supreme Court as required by section 2255(h)(2).
Court Description: Colloton, Author, with Wollman and Bowman, Circuit Judges] Prisoner case - Habeas. Petitioner seeks leave to file a second or successive habeas motion under 28 U.S.C. Sec. 2255(h) to challenge a sentence that was imposed after the district court applied the career-offender sentencing guideline, USSG Section 4B1.1, in calculating petitioner's advisory sentencing range; as the basis for the motion, petitioner cites Johnson v. United States, 135 S. Ct 2551 (2015) to argue that the residual clause of Guidelines Sec. 4B1.1(a)(2) is unconstitutionally vague; the motion seeks to assert a new right that has not been recognized by the Supreme Court or made retroactive on collateral review; the motion urges the creation of a second new rule that would apply Johnson and the constitutional vagueness doctrine to a provision of the advisory guidelines; the court therefore concludes that the successive motion should not be certified "to contain" a new rule made retroactive by the Supreme Court as required by Sec. 2255(h)(2); the motion for authorization to file a second or successive motion is denied.
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