REPORT AND RECOMMENDATION

GARY R. JONES, Magistrate Judge.

Petitioner has filed an amended Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody (ECF No. 33) in which he contends that he is entitled to sentencing relief under Johnson v. United States, 135 S.Ct. 2551 (2015). He has also submitted a "Motion to Respond to Court Order to Submit Complete Amended § 2255 Form" which is granted to the extent this order has issued.

Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts provides in part that A[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.@ A review of the record reveals that the Supreme Court's decision in Johnson has no bearing upon this case.

Petitioner pleaded guilty to coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b) and was sentenced to the ten year statutory mandatory minimum. Neither the Armed Career Criminal Act nor any other Chapter Four enhancement was a factor in his sentencing. (See ECF Nos. 1, 16-18, 23, 27-28). The Supreme Court's invalidation of the ACCA's residual clause in Johnson can afford him no relief, and the petition should be summarily dismissed.

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2255 Proceedings provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant," and if a certificate is issued "the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. Rule 11(b), § 2255 Rules.

After review of the record, the court finds no substantial showing of the denial of a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (explaining how to satisfy this showing) (citation omitted). Therefore, it is also recommended that the court deny a certificate of appealability in its final order.

The second sentence of Rule 11(a) provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." If there is an objection to this recommendation by either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation.

Accordingly it is ORDERED:

Petitioner's Motion to Respond to Court Order to Submit Complete Amended § 2255 Form (ECF No. 34) is GRANTED to the extent this recommendation has issued.

And, based on the foregoing, it is respectfully RECOMMENDED:

1. Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set aside or Correct Sentence (ECF No. 33) should be summarily DENIED and DISMISSED.

2. A certificate of appealability should be DENIED.