Filed: Aug. 30, 2016
Latest Update: Aug. 30, 2016
Summary: REPORT AND RECOMMENDATION G. R. SMITH , Magistrate Judge . Richard G. Burton, convicted on June 26, 2008 of possessing child pornography in violation of 18 U.S.C. 2252(a)(5)(B), doc. 39, 1 has filed a "Motion For Sentence Reduction And Vacatur Pursuant to 2255(f)(3) — Johnson Claim." Doc. 51. He argues that Johnson v. United States, U.S. ___, 135 S.Ct. 2551 (2015) and Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257 (2016), somehow apply to his case. The "residual clause
Summary: REPORT AND RECOMMENDATION G. R. SMITH , Magistrate Judge . Richard G. Burton, convicted on June 26, 2008 of possessing child pornography in violation of 18 U.S.C. 2252(a)(5)(B), doc. 39, 1 has filed a "Motion For Sentence Reduction And Vacatur Pursuant to 2255(f)(3) — Johnson Claim." Doc. 51. He argues that Johnson v. United States, U.S. ___, 135 S.Ct. 2551 (2015) and Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257 (2016), somehow apply to his case. The "residual clause"..
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REPORT AND RECOMMENDATION
G. R. SMITH, Magistrate Judge.
Richard G. Burton, convicted on June 26, 2008 of possessing child pornography in violation of 18 U.S.C. § 2252(a)(5)(B), doc. 39,1 has filed a "Motion For Sentence Reduction And Vacatur Pursuant to § 2255(f)(3) — Johnson Claim." Doc. 51. He argues that Johnson v. United States, U.S. ___, 135 S.Ct. 2551 (2015) and Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257 (2016), somehow apply to his case. The "residual clause" language of The Armed Career Criminal Act ("ACCA") that the Johnson Court found to be unconstitutionally vague, he contends, is the same as that found in 18 U.S.C. § 3156. Doc. 51 at 2, 4. He then plies a nonsensical argument to try and force-fit Johnson to a non-ACCA (in fact, child pornography) case. Id.
Burton's § 2255 motion is patently frivolous and thus must be DENIED. Meanwhile, it costs defendants nothing to file § 2255 motions (there is no filing fee in § 2255 cases), and Burton's casual consumption of judicial resources (he filed and then dismissed his own direct appeal) suggests that he may not be deterred from continuing to do so in the future. He faces sanctions 2 if he continues with such filings.
The Court also recommends denial of a certificate of appealability (COA). A federal prisoner must obtain a COA before appealing the denial of his motion to vacate. The District Court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts. Applying the COA standards, set forth in Brown v. United States, 2009 WL 307872, at *1-2 (S.D. Ga. Feb. 9, 2009), the Court discerns no COA-worthy issues regarding the instant motion, so no COA should issue. 28 U.S.C. 2253(c)(1); see Slack v. McDaniel, 529 U.S. 473, 484 (2000) ("Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case. . . no appeal would be warranted.").
SO REPORTED AND RECOMMENDED.
