Slone v. USA, No. 2:2016cv00125 - Document 1 (E.D. Ky. 2016)

Court Description: MEMORANDUM OPINION AND ORDER as to Charles E. Slone Jr. (3): It is ordered 1) Defendant Charles Slone, Jr.'s Motion to Vacate (2255) is DENIED in accordance with 28 U.S.C. §2244(a); 2) Slone's request for a writ of coram nobis is DENIED; 3) Defendant's request for a writ of audita querela is DENIED. Signed by Judge Danny C. Reeves on 7/14/2016.(TED)cc: COR, Charles E. Slone, Jr. via U.S. Mail

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Slone v. USA Doc. 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION (at Covington) UNITED STATES OF AMERICA, Plaintiff, V. CHARLES E. SLONE, JR., Defendant. ) ) ) ) ) ) ) ) ) Criminal Action No. 2: 11-69-DCR and Civil Action No. 2: 16-125-DCR MEMORANDUM OPINION AND ORDER *** *** *** *** This matter is pending for consideration of Defendant Charles Slone, Jr.’s pro se motion to vacate his sentence under 28 U.S.C. § 2255. [Record No. 424] Slone pleaded guilty to conspiring to distribute cocaine in violation of 21 U.S.C. § 846. [Record No. 323] On August 27, 2012, he was sentenced to a term of imprisonment of 262 months, followed by eight years of supervised release. [Record Nos. 298; 301] Slone filed a Notice of Appeal, but his appeal was dismissed due to the valid waiver provision contained in his Plea Agreement. [Record Nos. 305; 347] On June 5, 2014, Slone filed a motion to vacate his sentence under 28 U.S.C. § 2255. [Record No. 373] The Court denied the motion on June 8, 2015, entering Judgment in the United States’ favor. [Record Nos. 399; 400] Slone requested a Certificate of Appealability regarding the June 8, 2015 Judgment, but the United States Court of Appeals for the Sixth Circuit denied that request. [Record No. 417] Subsequently, Slone applied to the Sixth Circuit for authorization file a second or successive § 2255 motion, arguing that he was improperly sentenced as a career offender under § 4B1.1 of the United States Sentencing Guidelines (“U.S.S.G.”). [See Record No. 423.] - 1 - Dockets.Justia.com Specifically, he referenced the Supreme Court’s decision in Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015), and argued that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), violates due process because it is unconstitutionally vague. Slone asserted that the residual clause in U.S.S.G. § 4B1.2(a)(2), which contained similar language, was also unconstitutionally vague. [Id., p. 2] The Sixth Circuit denied Slone permission to file a second motion because he was not sentenced under the residual clause of § 4B1.2(a)(2). [Id.] Slone filed the present motion to vacate his sentence on June 24, 2016. [Record No. 424, p. 13] In an attachment to the motion, he references his application to the Sixth Circuit concerning a successive § 2255 motion, which was pending at that time. [Record No. 424-1] Slone requested that this Court hold the motion in abeyance until the Sixth Circuit issued its ruling. [Id.] Because the Sixth Circuit has now denied Slone permission to file a successive § 2255 motion based on Johnson, the Court lacks jurisdiction to entertain the present motion. See 28 U.S.C. 2244(b)(3); Bowman v. Warden, No. 1:08-cv-343, 2009 WL 943847, *4 (S.D. Ohio Apr. 6, 2009). Further, even if the Court had such jurisdiction, it would deny the motion because Slone does not qualify for relief under Johnson. Slone contends that he was improperly sentenced under U.S.S.G. § 4B1.1(a) due, in part, to his prior conviction for assault under extreme emotional disturbance under Kentucky law.1 [Record Nos. 424, p. 2; 308, p. 10] He claims that the conviction qualified as a crime of violence only under the residual clause of § 4B1.2(a)(2). [Record No. 424, p. 5] However, as noted by the Sixth Circuit, such a conviction 1 Slone’s other prior conviction was for a controlled substance offense. [Record No. 308, p. 10] As a result, it was not considered under the residual clause either. - 2 - qualifies as a crime of violence under the “use of force” clause in § 4B1.2(a)(1). See United States v. Colbert, 525 F. App’x 364, 368−370 (6th Cir. 2013) (addressing “use of force” clause in Armed Career Criminal Act). Because Slone was not sentenced under the residual clause, Johnson is inapplicable to his circumstances.2 Slone also requests relief under 28 U.S.C. § 2241, and he asks for a writ of coram nobis and/or a writ of audita querela. [Record No. 424, pp. 8−12] The § 2241 motion will be addressed by separate Order because it constitutes a separate civil action. See Slone v. United States, Civil Action 2: 16-126-DCR (2016). [Id., pp. 11−12] Because Slone asserts the same grounds for issuance of the two writs as for the § 2255 motion, he is not entitled to either of those writs, as his Johnson argument is meritless. In addition, the Court may properly construe the requests for writs as habeas motions. See, e.g., Schonschack v. United States, No. 1: 06cv-175, 2006 WL 1417847, *1 (W.D. Mich. May 22, 2006) (construing petition for writ of coram nobis as § 2254 petition); Neuhausser v. United States, Nos. 1: 98-CR-48(1), 1:08-CV638, 2009 WL 2883742, *2 (S.D. Ohio Sept. 2, 2009) (“[C]loaking a habeas motion in a petition for a writ of Audita Querela [does] not save Petitioner from the requirement to seek permission from the Court of Appeals and, absent that permission, Petitioner’s Petition [is] not properly before the Court.”). Moreover, “[w]here a statute specifically addresses the particular issue at hand, it is that authority,” not the authority to issue a writ of coram nobis, “that is controlling.” Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43 (1985). Here, § 2255 addresses the 2 A decision regarding the applicability of Johnson to the Sentencing Guidelines is currently pending before the United States Supreme Court, but this Court has assumed for the purposes of this motion that Johnson applies to invalidate the residual clause in the Sentencing Guidelines. See Beckles v. United States, No. 15-8544. - 3 - relief at hand because Slone is still in custody, whereas writs of coram nobis apply to those who are not in custody. See United States v. Johnson, 237 F.3d 751, 755 (6th Cir. 2001); Schonschack, 2006 WL 1417847, at *1. Likewise, a writ of audita querela “requires satisfaction of the judgment, [and] can only be used when the petitioner has served his or her sentence and been released from custody.” Frost v. Snyder, 13 F. App’x 243, 245 n.1 (6th Cir. 2001). Because Slone’s requests for a writ of coram nobis and a writ of audita querela are more properly considered as habeas petitions under 28 U.S.C. § 2255, the Court will deny those requests due to its lack of jurisdiction to consider the § 2255 motion. Accordingly, it is hereby ORDERED as follows: 1. Defendant Charles Slone, Jr.’s motion for relief under 28 U.S.C. § 2255 [Record No. 424] is DENIED in accordance with 28 U.S.C. § 2244(a). 2. Slone’s request for a writ of coram nobis [Record No. 424] is DENIED. 3. The defendant’s request for a writ of audita querela [Record No. 424] is DENIED. This 14th day of July, 2016. - 4 -

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