MOTION TO VACATE 28 U.S.C. § 2255

J. CLAY FULLER, Magistrate Judge.

MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

Movant has filed a 28 U.S.C. § 2255 motion to vacate his sentence. (Doc. 24). IT IS RECOMMENDED that the motion be DENIED.

I. Procedural History

Movant was indicted on March 3, 2015 for illegally re-entering the United States after having been deported, in violation of 8 U.S.C. § 1326(a) and (2)(b). (Doc. 1). He entered a non-negotiated plea of guilty (Doc. 17-1), and on August 5, 2015, he received a 47-month sentence (Doc. 22). In his counseled Sentencing Memorandum, he noted that he had been

(Doc. 19 at 1-2 (emphasis added); see Doc. 26 at 2-3 (Movant "did not object to the account of his 2008 drug trafficking convictions as summarized in the [PSR]. The Probation Officer recommended a base offense level of 8 under Section 2L1.2 of the Sentencing Guidelines, plus a 16-level adjustment under Section 2L1.2(b)(1)(A)(i) because [Movant] had a prior conviction for a drug trafficking offense for which he received criminal history points and for which he was sentenced in excess of 13 months.")); see also U.S.S.G. § 2L1.2(b)(1)(A) ("If the defendant previously was deported . . . after — (A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; [or] (ii) a crime of violence; . . . increase [his offense level] by 16 levels if the conviction receives criminal history points under Chapter Four. . . ." (emphasis added)).

Movant did not file a direct appeal. He signed and filed his § 2255 motion on March 30, 2016. (Doc. 24 at 13).

II. Standard Of Review

A federal prisoner may file a motion to vacate his sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). But it is well-settled that "to obtain collateral relief, a prisoner must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982).

III. Johnson And The Armed Career Criminal Act ("ACCA")

Movant raises one ground for relief — that his sentence is unconstitutional under Johnson v. United States, 135 S.Ct. 2551 (2015), because the Supreme Court in Johnson invalidated the ACCA's residual clause. (Doc. 24 at 4).

United States v. Gandy, 710 F.3d 1234, 1236-37 (11th Cir. 2013). In June 2015, the Supreme Court struck down the ACCA's residual clause as "unconstitutionally vague." Johnson, 135 S. Ct. at 2557-58.

IV. Movant's Sentence Was Not Enhanced Under The ACCA.

The government argues that Movant's claim is procedurally defaulted because he was sentenced in August 2015, after Johnson was decided, and thus he could have raised his Johnson claim at sentencing. (Doc. 26 at 3-4). The government also argues that even if the default is excused based on trial counsel ineffectiveness, the claim fails on the merits. (Id. at 4 et seq.). The Court agrees that Movant's claim is procedurally defaulted, but addresses it on the merits to show that Movant suffered no prejudice from counsel's failure to raise his Johnson claim at sentencing.

Because Movant's sentence was not enhanced under the ACCA, his appeal to the authority of Johnson is unavailing. (See Doc. 26 at 1-2 ("Johnson offers no relief—and indeed, is completely inapplicable—to prisoners like [Movant] who were exposed to higher sentences based on prior drug trafficking offenses, not crimes of violence.")). Movant argues that his due process rights were violated because of the unconstitutionally vague definitions of "crime of violence" in 18 U.S.C. § 16(b) and of "aggravated felony" in 8 U.S.C. § 1101(a)(43). (See Doc. 24 at 14-30; Doc. 27 at 1-3). But these definitions would be relevant only if Movant's sentence had been enhanced under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because of a previous crime of violence — rather than under § 2L1.2(b)(1)(A)(i) because of a previous drug offense — or if it had been enhanced under § 2L1.2(b)(1)(C) because of a previous aggravated felony. It was not. Movant's § 2255 claim fails.

V. Certificate Of Appealability

A § 2255 movant must obtain a certificate of appealability ("COA") before appealing the denial of a motion to vacate. 28 U.S.C. § 2255(d); 28 U.S.C. § 2253(c)(1)(B). A COA may issue only when the movant makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard is met when "reasonable jurists could debate whether (or, for that matter, agree that) the [motion to vacate] should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotations omitted). A movant need not "show he will ultimately succeed on appeal" because "[t]he question is the debatability of the underlying constitutional claim, not the resolution of that debate." Lamarca v. Sec'y, Dep't of Corr., 568 F.3d 929, 934 (11th Cir.) (citing Miller-El v. Cockrell, 537 U.S. 322, 337, 342 (2003)). Although Slack involved an appeal from the denial of a 28 U.S.C. § 2254 petition, the same standard applies here. See Jones v. United States, 224 F.3d 1251, 1254 (11th Cir. 2000) (applying Slack standard in § 2255 case). Because there is no reasonable argument that Movant's § 2255 claim has merit, a COA should not issue in this matter.

VI. Conclusion

IT IS RECOMMENDED that Movant's 28 U.S.C. § 2255 motion (Doc. 24) be DENIED and that he be DENIED a certificate of appealability.

The Clerk is DIRECTED to withdraw the reference to the Magistrate Judge.

SO RECOMMENDED.