Filed: Jul. 01, 2016
Latest Update: Jul. 01, 2016
Summary: MEMORANDUM AND ORDER PAMELA L. REEVES , District Judge . Before the Court now is Petitioner's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255 [Doc. 969]. He bases his request for relief on Johnson v. United States, 135 S.Ct. 2551 (2015), in which the Supreme Court held that the residual clause of the Armed Career Criminal Act ("ACCA") was unconstitutionally vague [ Id. ]. For the following reasons, Petitioner's 2255 petition [Doc. 969] will be
Summary: MEMORANDUM AND ORDER PAMELA L. REEVES , District Judge . Before the Court now is Petitioner's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255 [Doc. 969]. He bases his request for relief on Johnson v. United States, 135 S.Ct. 2551 (2015), in which the Supreme Court held that the residual clause of the Armed Career Criminal Act ("ACCA") was unconstitutionally vague [ Id. ]. For the following reasons, Petitioner's 2255 petition [Doc. 969] will be ..
More
MEMORANDUM AND ORDER
PAMELA L. REEVES, District Judge.
Before the Court now is Petitioner's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 969]. He bases his request for relief on Johnson v. United States, 135 S.Ct. 2551 (2015), in which the Supreme Court held that the residual clause of the Armed Career Criminal Act ("ACCA") was unconstitutionally vague [Id.]. For the following reasons, Petitioner's § 2255 petition [Doc. 969] will be DISMISSED WITH PREJUDICE.
I. BACKGROUND
In July, 2014, the Petitioner entered a guilty plea to one count of conspiracy to distribute and possession with intent to distribute five kilograms or more of cocaine and 280 grams or more of cocaine base [Doc. 308]. Based on the drug quantity inherent in his conviction, the United States Probation Office assigned him an offense level of 29 [Presentence Investigation Report Addendum], resulting in an advisory Guideline range of 120 months' imprisonment (the mandatory minimum) when combined with his criminal history category of I [Doc. 575]. The Court sentenced Petitioner to 120 months' incarceration [Doc. 600].
Petitioner appealed, but the Sixth Circuit Court of Appeals affirmed his conviction and sentence on August 6, 2015 [Doc. 822]. Petitioner filed the current § 2255 motion on June 20, 2016. He asserts that the Court erroneously applied either the Armed Career Criminal Act, and/or Johnson to his case at sentencing.
II. ANALYSIS
Petitioner's argument that he does not possess predicate offenses sufficient to support his categorization as an armed career criminal under § 924(e) fails because his sentence was not based on the ACCA or any enhancement.1 In fact, Petitioner was sentenced to the minimum time for the offense. As such, Johnson is inapposite to his case.
III. CONCLUSION AND ORDER
For the reasons discussed, Petitioner's § 2255 motion [Doc. 969] is hereby DISMISSED WITH PREJUDICE. The Court CERTIFIES that any appeal from this action would not be taken in good faith and would be totally frivolous. Therefore, this Court will DENY Petitioner leave to proceed in forma pauperis on appeal. See Rule 24 of the Federal Rules of Appellate Procedure. Petitioner having failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability SHALL NOT ISSUE. 28 U.S.C. § 2253; Rule 22(b) of the Federal Rules of Appellate Procedure.
IT IS SO ORDERED.
