Filed: Jan. 27, 2016
Latest Update: Jan. 27, 2016
Summary: MEMORANDUM AND ORDER JOHN A. ROSS , District Judge . This matter is before the Court on Mark Mitchem's motion to vacate, set aside, or correct sentence under 28 U.S.C. 2255. He brings three claims for relief: (1) that he is entitled to relief under Johnson v. United States, 135 S.Ct. 2551 (2015), (2) that his counsel was ineffective for failing to file a notice of appeal, and (3) that his predicate offenses used to calculate his criminal history score should not have been used. On J
Summary: MEMORANDUM AND ORDER JOHN A. ROSS , District Judge . This matter is before the Court on Mark Mitchem's motion to vacate, set aside, or correct sentence under 28 U.S.C. 2255. He brings three claims for relief: (1) that he is entitled to relief under Johnson v. United States, 135 S.Ct. 2551 (2015), (2) that his counsel was ineffective for failing to file a notice of appeal, and (3) that his predicate offenses used to calculate his criminal history score should not have been used. On Ju..
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MEMORANDUM AND ORDER
JOHN A. ROSS, District Judge.
This matter is before the Court on Mark Mitchem's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. He brings three claims for relief: (1) that he is entitled to relief under Johnson v. United States, 135 S.Ct. 2551 (2015), (2) that his counsel was ineffective for failing to file a notice of appeal, and (3) that his predicate offenses used to calculate his criminal history score should not have been used.
On June 15, 2015, movant pled guilty to one count of felon in possession of a firearm. On September 18, 2015, the Court sentenced him to 28 month's imprisonment. Movant's sentence was not enhanced under the Armed Career Criminal Act ("ACCA"), nor was it enhanced under Chapter Four of the United States Sentencing Guidelines.
On January 21, 2016, the Court entered an Order directing the Federal Public Defender to review movant's § 2255 motion and notify the Court whether it would file an amended motion on his behalf. However, the Court now finds that the Order was entered in error because movant alleges that the Assistant Federal Defender who represented him was ineffective. Therefore, the Court will vacate the January 21, 2016, Order.
Under Rule 4 of the Rules Governing § 2255 Cases, the Court is required to review the motion and dismiss it if it plainly appears that movant is not entitled to relief. After reviewing the motion, the Court finds that movant's Johnson claim must be dismissed.
In Johnson, the Court held that imposing an increased sentence under the residual clause, of the ACCA violates the Constitution's guarantee of due process. Id at 2557. Because movant was not sentenced under the ACCA, Johnson does not provide him with relief. As a result, ground one of the motion is dismissed. See 28 U.S.C. § 2255 Rule 4.
The Court will issue a separate Case Management Order for grounds two and three.
Accordingly,
IT IS HEREBY ORDERED that ground one of the motion is DISMISSED.
IT IS FURTHER ORDERED that the Court's Order dated January 21, 2016, [ECF No. 2] is VACATED.
