MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 6], DENYING MOTIONS TO AMEND AND SUPPLEMENT PETITION [DKT. NOS. 5; 8; 9], DENYING AND DISMISSING § 2255 PETITION WITH PREJUDICE [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
IRENE M. KEELEY, District Judge.
The petitioner, Jerry Johnson ("Johnson"), filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("Petition"), arguing that he is actually innocent of the career offender enhancement that the Court applied pursuant to United States Sentencing Guideline § 4B1.1. Pending for review is the Report and Recommendation ("R&R") of the magistrate judge recommending that the Court deny and dismiss the Petition. For the reasons that follow, the Court
A. Prior Proceedings
On January 22, 2008, Johnson pleaded guilty to one count of aiding and abetting in the distribution of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The Pre-Sentence Report ("PSR") determined that Johnson was eligible for the career offender enhancement pursuant to U.S.S.G. § 4B1.1 because (1) he was 18 years or older at the time of the offense, (2) the offense was a felony involving a controlled substance, and (3) he had at least two prior felony convictions for a crime of violence or a controlled substance offense (Dkt. No. 217 at 8).
After Johnson began his sentence of probation on March 27, 2009, he was arrested in Morgantown, West Virginia, on November 12, 2009, and charged with attempted abduction. Due to his new criminal conduct, the United States Probation Office sought to revoke Johnson's probation (Dkt. No. 237). The Court held a final revocation hearing on April 26, 2010, revoked Johnson's probation, and imposed a sentence at the low end of the original guideline range of 151 months of incarceration, followed by 3 years of supervised release (Dkt. No. 279).
Johnson appealed the revocation of his probation, arguing that his sentence of 151 months was "plainly unreasonable." However, the Court of Appeals for the Fourth Circuit affirmed his sentence, concluding that it was both "procedurally and substantively reasonable."
On March 15, 2012, Johnson filed his first § 2255 motion in which he raised the following grounds for relief: (1) his Florida attorney was ineffective for advising him to plead guilty to two state charges in 2003; (2) his federal attorney was ineffective for failing to meaningfully investigate his criminal history, causing him to be sentenced as a career offender; and (3) he was actually innocent of the Florida controlled substance offenses that formed the basis of his career offender enhancement.
Johnson filed a second § 2255 motion on June 2, 2014 (Dkt. No. 446), arguing that he was actually innocent of the career offender enhancement in light of
Thereafter, on May 18, 2016, Johnson moved to reopen his first § 2255 proceeding in an effort to challenge his career offender enhancement on the basis of
B. § 2255 Petition
On June 23, 2016, a panel of the Fourth Circuit authorized Johnson to file the instant second or successive § 2255 motion, challenging his eligibility for the career offender enhancement (Dkt. No. 477). Our circuit reasoned that "Johnson has made a prima facie showing that the new rule of constitutional law announced in
Johnson's Petition raises two issues regarding his career offender enhancement: (1) whether Johnson's prior robbery conviction qualifies as a "crime of violence" after
C. R&R and Objections
In his R&R, the magistrate judge acknowledged that the Supreme Court's holding in
On July 25, 2016, Johnson filed timely objections to the R&R, providing more specific reasons as to why his robbery and drug convictions should not qualify as predicate offenses under the career offender guideline (Dkt. No. 7). Thereafter, he also filed a motion to amend his Petition to include an ineffective assistance of counsel claim (Dkt. No. 8), as well as a motion to supplement the Petition with additional authority (Dkt. No. 9).
II. STANDARD OF REVIEW
A. Magistrate Judge's R&R
When reviewing a magistrate judge's R&R made pursuant to 28 U.S.C. § 636, the Court must review
Pro Se Pleadings
The Court must liberally construe
III. APPLICABLE LAW
Pursuant to 28 U.S.C. § 2255(a), a prisoner may move his sentencing court to vacate, set aside, or correct his sentence on "the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." Second or successive motions such as Johnson's must be certified by a court of appeals to contain:
The court of appeals may only grant authorization to file a second or successive application if "the application makes a prima facie showing that" it satisfies the above standard. 28 U.S.C. § 2244(b)(3)(C). The Fourth Circuit screens applications to determine only whether they contain "
For the reasons that follow, Johnson's claim based on
A. Claim One:
Johnson v. United States
According to Johnson, after the Supreme Court's decisions in
Notably, the language of the ACCA's invalidated residual clause can also be found in the residual clause of the career offender provision of the 2007 Sentencing Guidelines used to calculate Johnson's sentence. Under U.S.S.G. § 4B1.2(a)(2), "crime[s] of violence" include offenses that "otherwise involve conduct that presents a serious potential risk of physical injury to another." Johnson argues that, because the ACCA residual clause was invalidated as unconstitutional in
Consistent with Fourth Circuit precedent,
B. Claim Two:
Descamps v. United States
Johnson next argues that his Florida convictions for possession of cocaine with intent to sell, in violation of Fla. Stat. § 893.13, should not have been considered controlled substance offenses under the career offender guideline (Dkt. Nos. 1 at 4; 7 at 3, 7). More particularly, Johnson contends that the Florida statute is not divisible, and thus not subject to application of the modified categorical approach (Dkt. No. 7 at 3, 7). Because Johnson does not present any "newly discovered evidence," this claim must be founded in a "new rule of constitutional law, made retroactive to cases on collateral review."
Johnson relies on the Supreme Court's decision in
C. Motion to Amend: Ineffective Assistance of Counsel
Finally, in his motion to amend, Johnson seeks to add a claim that he received ineffective assistance of counsel in connection with his sentencing (Dkt. No. 8). Pursuant to Fed. R. Civ. P. 15(a), leave to amend should "be freely given when justice so requires." Nonetheless, the Court may deny a motion to amend if the proposed amendment would be futile.
At Johnson's sentencing hearing, the Court warned him that it would likely impose a five-year term of incarceration if revocation of his probation became necessary (Crim. Action No. 1:07cr104, Dkt. No. 376 at 30). Nonetheless, when it revoked Johnson's probation in April 2010, the Court exercised its discretion to impose a 151-month term of incarceration — a sentence which the Fourth Circuit affirmed as reasonable (Crim. Action No. 1:07cr104, Dkt. No. 341). In his motion to amend, Johnson argues that his attorney failed to investigate his prior convictions, failed to adequately prepare for his probation revocation proceeding, and failed to advise him that, should he violate the terms of his probation, he would be subject to a sentence within the original guideline range (Dkt. No. 8 at 5, 7).
Johnson's proposed ineffective assistance claim is utterly bereft of any new evidence or new rule of constitutional law that would permit review in this proceeding.
For the reasons discussed, none of Johnson's claims satisfy the stringent requirements of § 2255(h). Therefore, the Court:
It is so
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, the district court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant" in such a case. If the court denies the certificate, "a party may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22." 28 U.S.C. foll. § 2255(a).
The Court finds it inappropriate to issue a certificate of appealability in this matter because Johnson has not made a "substantial showing of the denial of a constitutional right."