Stevenson v. USA - 2255, No. 1:2016cv02306 - Document 2 (D. Md. 2017)

Court Description: MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 9/20/2017. (kw2s, Deputy Clerk)
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Stevenson v. USA - 2255 Doc. 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF Mr\RYLAND KEITH STEVENSON, * Petitioner, * * v. UNITED STATES OF AMERICA, * * Respondent. * * Civ. Action No. RDB-16-2306 Crim. Action No. RDB-08-588 * * * On November * * * MEMORANDUM * * * * 13, 2009, Petitioner Keith Stevenson ("Petitioner" pled guilty to possession * OPINION or "Stevenson") with intent to distribute cocaine, in violation of 21 U.S.c. ~ 841(a)(1) (ECF No. 39.) During Petitioner's sentencing hearing, this Court found that Petitioner's prior convictions for attempted robbery with a dangerous weapon and robbery with a dangerous weapon qualified as "crimes of violence" under United States Sentencing Guideline (U.S.S.G.) ~ 4B1.2.(a). As a result, Petitioner was deemed a career offender and was then sentenced to a term of one-hundred and twenry (120) months imprisonment. Six years later, the Supreme Court in johnJon I'. United Statu, _ U.S. _, 135 S. Ct. 2551 (2015) struck down the residual clause of the Armed Career Criminal r\ct (ACCA), 18 U.S.c. ~ 924(e)(2)(B)(ii) as unconstitutionally Defender (OFPD) vague. The Office of the Federal Public then fJ.!ed a motion on behalf of Petitioner under 28 U.S.c. ~ 2255, arguing that because the "Career Offender" provision in the Sentencing Guidelines includes the identical residual clause as that struck down in johnJon, it is also void for vagueness. (ECF No. 67.) 1 In 2017, however, the Supreme Court held in Beckles S. Ct. 886 (2017) that the advisory guidelines Subsequent IJ. United States, _ U.S. _, 137 to Johnson challenges. were not subject to that decision, the OFPD informed Petitioner that in light of Beckles it would no longer be able to represent him. On September 18, 2017, the OFPD filed a Motion to Withdraw as Counsel (ECF No. 69), which this Court granted. (ECF No. 70.) Petitioner has since been released from custody.! However, still pending before this Court is Petitioner's Motion to Correct Sentence Under 28 U.S.c. ~ 2255. (ECF No. 67.) The parties' submissions 105.6 (D. Md. 2016). have been reviewed, and no hearing is necessary. For the reasons stated herein, Petitioner See Local Rule Stevenson's Motion to Correct Sentence Under 28 U.S.c. ~ 2255 (ECF No. 67) is DENIED. ANALYSIS only claim is that under Johnson, the residual clause that this Court applied Petitioner's while sentencing Petitioner whether Petitioner's robbery prior convictions with a dangerous "enumerated is void for vagueness. weapon for attempted this Court must determine robbery with a dangerous weapon and quality as crimes of violence under the remaining offenses" clause or "force" clause of U.S.S.G ~ 4131.2(a). As the OFPD stated in its !\lotion to Withdraw Betides this argument is without merit. Sentencing Therefore, Guidelines l\S as Counsel, however, in light of the Becklu Court stated, "[b]ecause the advisory are not subject to a due process vagueness challenge, ~ 4B1.2(a)'s I Although Petitioner is no longer incarcerated, his Section 2255 :t\fotion to Correct Sentence is still ripe for adjudication because he remains on supervised release. The United States Court of Appeals for the Fourth Circuit has made clear in Uniled Siaies I'. Pregenl, 190 F.3d 279, 283 (4th Cit. 1999) that "[aJ prisoner on supervised release is considered to be 'in custody' for purposes of a ~ 2255 motion" (citing Ala/eng v. Cook, 4-90 U.S. 488, 491 (1989)). 2 residual clause is not void for vagueness." 137 S. Ct. at 897. For this reason, Petitioner's pending Motion to Vacate (ECF No. 67) is DENIED. CONCLUSION For the reason stated above, Petitioner Stevenson's Motion to Correct Sentence Under 28 U.S.c. ~ 2255 (ECF No. 67) is DENIED. Pursuant to Rule 11(a) of the Rules Governing Proceedings under 28 U.S.c. ~ 2255, the court is required to issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A certificate of appealability is a "jurisdictional prerequisite" to an appeal from the court's earlier order. United States v. Hadden, 475 F.3d 652, 659 (4th Cir. 2007). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional denies petitioner's that reasonable debatable right." 28 U.S.c. ~ 2253(c)(2). Where the court motion on its merits, a petitioner satisfies this standard by demonstrating jurists would find the court's assessment of the constitutional claims or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Miller-EI v. Cockrell, 537 U.S. 322, 336-38 (2003). Because reasonable jurists would not find Stevenson's claims debatable, a certificate of appealability is DENIED. A separate Order follows. Dated: September 20, 2017 Richard D. Bennett United States DistrictJudge 3