SARAH S. VANCE, District Judge.
Pro se litigant Lloyd Curry moves the Court to vacate his sentence under 28 U.S.C. § 2255.
The Armed Career Criminal Act, 18 U.S.C. § 924(e), requires sentencing courts to impose a minimum fifteen-year term of imprisonment on repeat offenders who are convicted of unlawful possession of a firearm under 18 U.S.C. 992(g). The Act provides in relevant part:
18 U.S.C. § 924(e)(1). The Act establishes six definitions for a "violent felony": any crime that (1) has as an element the use, attempted use, or threatened use of physical force against another person; (2) is burglary; (3) is arson; (4) is extortion; (5) involves using explosives; or (6) "otherwise involves conduct that presents serious potential risk of injury to another." 18 U.S.C. § 924(e)(2)(B)(i)-(ii). Courts have coined the first definition the "force clause"; and the sixth definition, the "residual clause." See United States v. Davis, 487 F.3d 282, 285 (5th Cir. 2007). The Act also provides that the term "serious drug offense" includes any State offense "involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance," which is punishable by a maximum term of ten years. 18 U.S.C. § 924(e)(2)(A)(ii).
On May 2, 2012, this Court sentenced Curry as an armed career criminal based on three prior Louisiana state court convictions. Curry now challenges that sentence.
A federal grand jury issued a superseding indictment against Curry on May 27, 2010. Counts One, Two, and Three charged Curry with distributing heroin.
Curry pleaded guilty to Counts One, Two, Three, and Five on February 23, 2011.
Curry directly appealed his sentence to the Fifth Circuit. Curry argued that his conviction for attempted aggravated oral sexual battery was not a "violent felony" under the Armed Career Criminal Act and that the Act's residual clause was void-for-vagueness. Finding that Curry failed to show that this Court had committed plain error because attempted aggravated oral sexual battery satisfied the Act's residual clause, the Fifth Circuit affirmed Curry's sentence. The court declined to address whether attempted aggravated oral sexual battery includes physical force as an element of the offense and thus satisfies the Act's "force clause." The court summarily rejected Curry's constitutional challenge under the then-prevailing Supreme Court precedent. United States v. Curry, 552 F. App'x 309, 314-15 (5th Cir. 2014). Curry petitioned the United States Supreme Court for writ of certiorari, which the Supreme Court denied on May 19, 2014. Curry v. United States, 134 S.Ct. 2323 (2014).
On March 30, 2015, utilizing a form section 2255 motion, Curry moved to vacate his sentence, asserting four potential grounds for relief.
On July 10, 2015, Curry moved the Court to stay this proceeding to give Curry additional time to submit a "Memorandum of Law" supporting his section 2255 motion.
On September 28, 2015, Curry filed a "Supplemental Motion Pursuant to § 2255." This supplemental motion includes a motion to amend "Ground One" as originally stated in his section 2255 motion, to instead read: "The Petitioner's Substantial and Constitutional Rights ha[ve] been violated by the use of Predicate conviction to enhance the Petitioner's sentence."
Curry's supplemental motion also includes a "Memorandum of Law" in support of his other arguments.
In response, the Government waived any objection to Curry's filing an untimely supplemental motion and to whether the supplemental motion should relate back to his original filing.
Section 2255 of Title 28 of the United States Code provides that a federal prisoner serving a court-imposed sentence "may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). As with the writ of habeas corpus, see 28 U.S.C. §§ 2241, 2254, only a narrow set of claims is cognizable on a section 2255 motion. The statute identifies four bases on which a motion may be made: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255(a). A claim of error that is neither constitutional nor jurisdictional is not cognizable in a section 2255 proceeding unless the error constitutes "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424 (1962)).
The district court must first conduct a preliminary review of a section 2255 motion. "If it plainly appears from the motion, any attached exhibits, and the record of the prior proceeding that the moving party is not entitled to relief, the judge must dismiss the motion . . . ." Rule 4(b), 28 U.S.C. foll. § 2255. If the motion raises a non-frivolous claim to relief, the court must order the Government to file a response or to take other appropriate action. Id. The judge may then order the parties to expand the record as necessary and, if good cause is shown, authorize limited discovery. Rules 6-7, 28 U.S.C. foll. § 2255.
After reviewing the Government's answer, any transcripts and records of prior proceedings, and any supplementary materials submitted by the parties, the court must determine whether an evidentiary hearing is warranted. Rule 8, 28 U.S.C. foll. § 2255. Under the statute, an evidentiary hearing must be held unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). No evidentiary hearing is required, however, if the prisoner fails to produce any "independent indicia of the likely merit of [his] allegations." United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006) (quoting United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998)).
Ultimately, the petitioner bears the burden of establishing his claims of error by a preponderance of the evidence. Wright v. Bondurant, 689 F.2d 1246, 1251 (5th Cir. 1982). For certain "structural" errors, relief follows automatically once the error is proved. See Burgess v. Dretke, 350 F.3d 461, 471 (5th Cir. 2003). For other "trial" errors, the court may grant relief only if the error "had substantial and injurious effect or influence" in determining the outcome of the case. Brecht v. Abrahmson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see also United States v. Chavez, 193 F.3d 375, 379 (5th Cir. 1999) (applying Brecht's harmless error standard in a § 2255 proceeding). If the Court finds that the prisoner is entitled to relief, it "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b).
Each of Curry's four grounds for post-conviction relief ultimately depends on whether his underlying conviction for attempted aggravated oral sexual battery is a "violent felony" under the Armed Career Criminal Act. The Fifth Circuit has already answered this question and affirmed Curry's enhanced sentence as an armed career criminal on direct appeal. The Fifth Circuit's holding rested on the now-defunct "residual clause" of the Armed Career Criminal Act, which the Supreme Court invalidated as void-forvagueness in Johnson v. United States, 135 S.Ct. 2551 (2015). Johnson does not afford Curry any relief, however, because the unconstitutionality of the residual clause does not apply to cases on collateral review. See In re Williams, ___ F.3d ___, 2015 WL 7074261 (5th Cir. 2015). Accordingly, the Fifth Circuit's decision on Curry's direct appeal remains the law of his case for this Court's collateral review. See Moore v. United States, 598 F.2d 439, 441 (5th Cir. 1979) ("If issues are raised and considered on direct appeal, a defendant is thereafter precluded from urging the same issues in a later collateral attack."); see also United States v. Goudeau, 512 F. App'x 390, 393 (5th Cir. 2013) ("[W]e may not consider an issue disposed of in [a] previous appeal at the § 2255 stage."). Having been raised by Curry and considered and disposed of by the Fifth Circuit, these claims are procedurally barred.
To the extent that Curry now argues that his conviction for attempted distribution of marijuana cannot support his armed career criminal classification, this claim is also procedurally barred. Curry failed to raise this claim on direct appeal, which constitutes "procedural default." See United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2011). The Court will excuse a petitioner's procedural default only upon a showing of cause and prejudice. McCleskey v. Zant, 499 U.S. 467, 493 (1991); Willis, 273 F.3d at 595. Here, Curry has shown neither, and the Court need not address this claim on Curry's section 2255 motion. Therefore, the Court finds that an evidentiary hearing is unnecessary and denies Curry's motion to vacate his sentence.
Rule 11(a) of the Rules Governing Section 2254 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." A court may only issue a certificate of appealability if the petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The "controlling standard" for a certificate of appealability requires the petitioner to show "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented [are] adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
For the reasons stated in this Order denying relief, the Court concludes that Curry's petition fails to satisfy this standard.
For the foregoing reasons, the Court DENIES Curry's petition for habeas corpus and DENIES a certificate of appealability.
