ORDER DENYING THE § 2255 MOTION

ROBERT L. HINKLE, District Judge.

The defendant Charles Bynum has moved for relief under 28 U.S.C. § 2255 based on Johnson v. United States, 135 S.Ct. 2551 (2015). Johnson addressed the armed career criminal act, 18 U.S.C. § 924(e). The act applies to a defendant who is convicted of possessing a firearm as a convicted felon and who has three or more prior convictions of a violent felony or serious drug offense. Johnson held unconstitutionally vague part of the definition of a violent felony—the part sometimes referred to as the "residual clause."

Mr. Bynum was convicted of conspiring to possess methamphetamine with intent to distribute it. He was not charged with or convicted of possessing a firearm as a convicted felon. Johnson does not apply to Mr. Bynum's conviction or sentence. He is not entitled to relief.

To be sure, Mr. Bynum was treated as a career offender under United States Sentencing Guidelines Manual § 4B1.1. A career offender must have at least two prior convictions of a crime of violence or drug trafficking offense. The definition of a crime of violence was set out in § 4B1.2 and had a residual clause similar to the one that Johnson held unconstitutional. But this does not entitle Mr. Bynum to relief for two reasons, either of which would be sufficient standing alone to require denial of his § 2255 motion.

First, Mr. Bynum was (and is) a career offender based on his two prior drug trafficking convictions, not based on any crime of violence. The career-offender residual clause had nothing to do with Mr. Bynum's sentence.

Second, in Beckles v. United States, 137 S.Ct. 886 (2017), the Supreme Court held that the vagueness principle underlying Johnson does not apply to the Sentencing Guidelines. So even if the career-offender residual clause had been a basis for Mr. Bynum's sentence—it was not—Mr. Bynum still would not be entitled to relief.

A defendant may appeal the denial of a § 2255 motion only if the district court or court of appeals issues a certificate of appealability. Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." Miller-El v. Cockrell, 537 U.S. 322, 335-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); see also Williams v. Taylor, 529 U.S. 362, 402-13 (2000) (setting out the standards applicable to a § 2254 petition on the merits). As the Court said in Slack:

529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in order to obtain a certificate of appealability when dismissal is based on procedural grounds, a petitioner must show, "at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. at 484.

Mr. Bynum has not made the required showing. This order thus denies a certificate of appealability. If Mr. Bynum wishes to be heard further on the certificate-of-appealability issue, he may move for a certificate of appealability, and the issue will be reconsidered de novo.

For these reasons,

IT IS ORDERED:

SO ORDERED.