Opinion
Crim. No. 3:08-773-MBS-1
07-28-2017
Donald Chaney, Movant, v. United States of America, Respondent.
ORDER AND OPINION
Movant Donald Chaney ("Movant") moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. ECF No. 160. The court previously stayed this matter pending the Supreme Court's decision in Beckles v. United States, 616 F. App'x 415 (11th Cir. 2015), cert. granted, 2016 WL 1029080 (U.S. June 27, 2016) (No. 15-8544). Now that the Supreme Court has issued an opinion in Beckles, ___ U.S. ___, 137 S. Ct. 886 (2017), the stay is lifted. In light of Beckles, Respondent moved to dismiss on May 12, 2017. ECF No. 166. Movant concedes that Beckles controls his § 2255 motion but requests the court reconsider, under Federal Rule of Civil Procedure 60(b)(5) and (b)(6), the court's denial of Movant's first § 2255 motion. ECF No. 168.
I. ANALYSIS
A. Application of Beckles
In Beckles, the Supreme Court held that the United States Sentencing Guidelines ("U.S.S.G.") are advisory, thus not subject to void for vagueness challenge under the Fifth Amendment Due Process Clause. 137 S. Ct. at 897. The central premise of Movant's § 2255 motion is that U.S.S.G § 4B1.2(a)(2)'s residual clause is void for vagueness. Cf. Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). The Supreme Court squarely rejected that argument in Beckles. Consequently, Movant's § 2255 motion lacks merit.
Movant's motion to vacate, ECF No. 148, and his attorney's supplemental motion to vacate, ECF No. 160, were both based on Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015). As the court denies ECF No. 160, Movant's pro se motion to vacate, ECF No. 148, has been terminated as moot. Further, Movant's motion to hold in abeyance, ECF No. 155, and motion for extension of time are terminated as moot. --------
B. Application of Federal Rule of Civil Procedure 60(b)
The court initially granted Movant's first § 2255 motion on October 6, 2011. ECF No. 101. However, on October 21, 2011, the court issued a text order that sua sponte vacated its initial grant of Movant's § 2255 motion, ECF No. 103, and issued a written order on February 16, 2012, denying Movant's § 2255 motion, ECF No. 107. The court held that under the modified categorical approach, Movant's conviction for second degree burglary constituted a predicate offense that supported his classification as a career offender under the U.S.S.G. Id. at 8. On June 16, 2014, Movant moved to amend the judgment pursuant to Rule 60(b). ECF No. 134. Movant contended that the court acted improperly by vacating its order sua sponte without holding a hearing. ECF No. 134-1 at 7. The court held that it could sua sponte amend its orders where justice so requires and there was no question of fact that warranted a hearing. ECF No. 136 at 3-4. The court found that Movant's Rule 60(b) motion was in actuality a successive § 2255 motion, as Movant requested the court reconsider its determination of Movant's career offender status. ECF No. 136 at 4-5. Because the Fourth Circuit Court of Appeals had not issued an order permitting the court consider Movant's successive § 2255 motion, the court held that it was without jurisdiction to review the merits of the motion. Id. at 5.
Movant requests that the court grant leave to file a Rule 60(b) motion to challenge the order issued on February 16, 2012. ECF No. 168 at 6. The court is construing his request as a Rule 60(b) motion as Movant provided sufficient legal and factual support for the court to make a determination on its merits. Movant again requests the court reconsider its holding that Movant's South Carolina second degree burglary conviction constitutes a predicate offense and that it was not ineffective assistance of counsel to fail to argue otherwise. ECF No. 168 at 2. In United States v. Winestock, the Fourth Circuit Court of Appeals held that "district courts must treat Rule 60(b) motions as successive collateral review applications when failing to do so would allow the applicant to 'evade the bar against relitigation of claims presented in a prior application or the bar against litigation of claims not presented in a prior application.'" 340 F.3d 200, 206 (4th Cir. 2003) (emphasis in original). The Fourth Circuit further explained "that a motion directly attacking the prisoner's conviction or sentence will usually amount to a successive application, while a motion seeking a remedy for some defect in the collateral review process will generally be deemed a proper motion to reconsider." Id. at 207.
A successive § 2255 motion must be certified by a panel in the appropriate court of appeals. 28 U.S.C. § 2255(h). A defendant is required to file a motion in the appropriate court of appeals requesting an order authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3)(A). Once the motion is filed, a three-judge panel in the appropriate appeals court has thirty days to grant or deny the authorization. Id. at § 2244 (b)(3)(C)-(D). The denial of the authorization is not appealable and cannot be the subject for petition for writ of certiorari. Id. at § 2244 (b)(3)(E).
Movant is attempting to re-litigate the determination of his career offender status. Movant's argument directly attacks the basis for his sentence. Accordingly, Movant's request is properly characterized as a successive § 2255 motion, not a Rule 60(b) motion. Movant has failed to petition the Fourth Circuit Court of Appeals to obtain authorization to file a successive motion. The Fourth Circuit has not issued an order authorizing the court to consider Movant's successive motion. The court permitted Movant to file a successive motion to the extent it addressed Movant's potential Johnson claims. See ECF No. 153. However, the court is without jurisdiction to review the merits of the § 2255 motion beyond Movant's claim for relief under Johnson. Movant's request falls outside the scope of the permitted successive motion. Therefore, this court is without jurisdiction to review his claim.
II. CONCLUSION
For the foregoing reasons, Respondent's motion to dismiss is GRANTED and Movant's § 2255 motion is DENIED. Movant's § 2255 motion is dismissed without prejudice. Movant's motion for leave to file a Rule 60(b) motion for reconsideration is DENIED.
CERTIFICATE OF APPEALABILITY
A certificate of appealability may issue only if the applicant has made a substantial showing of denial of a constitutional right. 28 U.S.C § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable jurists would find this court's assessment of his constitutional claims debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See Miller-el v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee 252 F.3d 676, 683 (4th Cir. 2001). In this matter, the legal standard for the issuance of a certificate of appealability has not been met. Therefore, the court denies a certificate of appealability.
AND IT IS SO ORDERED.
s/ Margaret B. Seymour
The Honorable Margaret B. Seymour
Senior United States District Court Judge July 28, 2017
Columbia, South Carolina