MICHAEL J. McSHANE, District Judge.
Petitioner Michael Dean Galloway is currently serving a 188-month sentence based in part on § 2K2.1(a) of the United States Sentencing Guidelines ("Guidelines").
In 2005, Mr. Galloway pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and possessing an unregistered firearm in violation of 26 U.S.C. §§ 5845(a), 5845(d), 5861(d), and 5871. Judgment 1, ECF No. 39. The district court found that, under the Armed Career Criminal Act ("ACCA"), Mr. Galloway had four prior convictions for "violent felonies" and he was sentenced to a 235-month prison term. Findings of Fact Order 2-3, ECF No. 40. On direct appeal, however, the Ninth Circuit vacated Mr. Galloway's ACCA sentence, holding that two of his prior convictions, both for Oregon burglary in the second degree, were not categorical violent felonies. United States v. Galloway, 235 Fed. Appx. 571 (9th Cir. 2007) (citing United States v. Grisel, 488 F.3d 844, 851 (9th Cir. 2007)).
On remand for resentencing, the district court found that Mr. Galloway qualified for an enhanced sentence under § 2K2.1(a) of the advisory Guidelines based in part on two prior convictions for attempted murder and burglary in the first degree—both "crimes of violence" within the meaning of § 4B1.2. Presentence Report ("PSR") ¶ 19; Statement of Reasons 1-2, ECF No. 72 (adopting PSR in full). With the enhancement, Mr. Galloway's Guidelines range was 155-188 months. PSR ¶¶ 20-26. After considering the recommended range and the factors listed in 18 U.S.C. § 3553(a), the court imposed a 188-month sentence. Judgment 2, ECF. No. 70. Judge Hogan added that, "[f]or whatever benefit it is to the court of appeals . . . I take records more seriously when someone has actually pulled a trigger, and that happened here in this situation, and the sentence is based in part on that." Tr. 16:18-23, ECF No. 73.
On June 17, 2016, Mr. Galloway filed the instant motion to vacate or correct his sentence pursuant to 28 U.S.C. § 2255. This was his second such motion and therefore required authorization from the Ninth Circuit, which he received. Galloway v. United States, No. 16-71939 (9th Cir. Sept. 16, 2016). Mr. Galloway initially argued that the principles set forth in Johnson v. United States, 135 S.Ct. 2551 (2015), rendered void for vagueness the Guidelines provision on which his recommended sentencing range was based. When that argument was subsequently foreclosed by the Supreme Court's holding in Beckles v. United States, 137 S.Ct. 886 (2017), Mr. Galloway amended his pleading to argue that, although not void for vagueness, the Guidelines language remains unworkable, leaving no lawful basis for his recommended sentencing range and rendering his actual sentence both arbitrary and capricious, in violation of the Due Process Clause, and disproportionate, in violation of the Eighth Amendment.
The Government now moves to dismiss Mr. Galloway's motion on five grounds. First, it argues that the motion fails to satisfy the requirements for a second or successive petition under 28 U.S.C. § 2255(h)(2) because it does not rely on the new rule of constitutional law announced in Johnson. Second, the Government argues that, under 28 U.S.C. § 2255(f), Mr. Galloway's amended motion is untimely and cannot relate back to the date on which the original motion was filed. Third, the Government argues that § 2255 only provides prisoners with relief from constitutional sentencing errors and, because miscalculation of a Guidelines range is non-constitutional error, Mr. Galloway's claims are not cognizable. Fourth, the Government argues that, even if Mr. Galloway's motion is timely and a permissible second petition, his claims are procedurally defaulted and therefore cannot be raised on collateral review. Finally, moving on to the merits, the Government argues that, because Mr. Galloway's sentence is based on all of the factors listed in 18 U.S.C. § 3553(a), not just the advisory Guidelines, it is constitutional.
The Court need not reach the merits of Mr. Galloway's claims because his motion is untimely and an impermissible second petition. The timeliness and permissibility of all § 2255 motions, including second petitions, is governed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Under AEDPA, a second § 2255 motion must be dismissed, without reaching the merits, unless it "relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2244(b)(4). Here, the parties agree, as they must, that Johnson announced a new rule of constitutional law and that this new rule is retroactively applicable to cases on collateral review. See Welch v. United States, 136 S.Ct. 1257, 1265 (2016). They disagree, however, as to the scope of that new rule and, in turn, whether Mr. Galloway's motion relies on it.
The Court agrees with the Government that Mr. Galloway's motion does not rely on the new rule from Johnson. A motion relies on the same new rule announced in a prior Supreme Court decision if the substance of that decision requires that the district court grant a prisoner's motion on the merits. See Ezell v. United States, 778 F.3d 762, 766 (9th Cir. 2015). Stated differently, the merits of a prisoner's motion must require no more than a "garden variety" application of the relevant case's governing principle. Chaidez v. United States, 568 U.S. 342, 348 (2013). The broadest possible formulation of the new rule announced in Johnson is that, when used in sentencing regimes which fix sentences, the residual clause is unconstitutionally vague. Although the opinion broadly describes the residual clause as a "black hole of confusion," that disapproving language is constitutionally tethered only to the void-for-vagueness doctrine. Johnson, 135 S. Ct. at 2652. The Court makes no mention of the advisory Guidelines, Eighth Amendment, or how either would interact with the Fifth Amendment's general prohibition on arbitrary punishment. As Judge Simon recently noted, Johnson's critique of the residual clause language "was not itself a new rule of constitutional law which created a due process or Eighth Amendment right independent of the void-for-vagueness rule."
Mr. Galloway's characterization of the new rule announced in Johnson—"that the residual clause provides no lawful framework for fair sentencing"—stretches that decision beyond recognition. As noted above, the Supreme Court's analysis was limited to vagueness challenges in the context of a mandatory sentencing regime; it did not address the constitutionality of a sentence informed only in part by the defective language of the residual clause, and it certainly did not go so far as to require that any sentence in which the residual clause played a role must be unlawful. Indeed, the underlying logic of Beckles provides that, because the Guidelines are merely advisory, "previous convictions are neither clearly lawful nor unlawful bases" for an enhanced sentence. Slattery, 2017 WL 4581790, at *3. Instead, a district court is "free to make an upward departure from the range recommended by the Guidelines, even where previous convictions unambiguously do not qualify as predicate offenses." Id. There is, as such, simply too great a distance between the principle governing Johnson and the result Mr. Galloway seeks for this Court to find that his motion relies on the new rule from that case.
Still, even if Mr. Galloway's motion satisfied the gatekeeping requirements of 28 U.S.C. § 2255(h)(2), it would be time bared. Under AEDPA, "all motions" pursuant to § 2255, including second or successive petitions, must be filed within one year from the date on which a conviction becomes final, unless an exception applies. Dodd v. United States, 545 U.S. 353, 359 (2005); 28 U.S.C. § 2255(f). Mr. Galloway seeks to rely on the exception at § 2255(f)(3) to render his motion timely. Under § 2255(f)(3), a motion is timely if (1) it "assert[s] . . . [a] right. . . newly recognized by the Supreme Court," 28 U.S.C. § 2255(f)(3), (2) it is filed within one year from the "date on which the right asserted was initially recognized by the Supreme Court," id. § 2255(f)(3), and (3) the Supreme Court or controlling Court of Appeals has declared the right retroactively applicable on collateral review, Dodd, 545 U.S. at 357-59. As this Court has held, however, the "new right" requirement is narrower than the "new rule" requirement discussed above. United States v. Colasanti, 282 F.Supp.3d 1213, 1220-22 (D. Or. 2017). "The right recognized by Johnson is limited to its specific holding: that the ACCA's residual clause is unconstitutionally vague." Id. at 1218. By asking this Court to invalidate a sentence based not on the ACCA, and by reference to constitutional theories never discussed in Johnson, Mr. Galloway asserts a right not recognized in Johnson. His motion is therefore untimely.
For the foregoing reasons, Mr. Galloway's motion to vacate or correct his sentence is DENIED. The Government's motion to dismiss is GRANTED. Since reasonable jurists could not debate the Court's resolution of this case, it declines to issue a certificate of appealability.
IT IS SO ORDERED.
