United States District Court, N.D. Iowa
R. READER JUDGE UNITED STATES DISTRICT COURT
matter appears before the court on the movant's motion to
vacate, set aside or correct sentence pursuant to 28 U.S.C.
§ 2255 (civil docket no. 1), filed on March 18, 2016,
and motion to hold action in abeyance (civil docket no. 2),
filed on May 27, 2016.
court considered the record and the law, which includes but
is not limited to the following: Beckles v. United
States,, ___ U.S.___, ___ S.Ct., 2017 WL 855781, at *6
(Mar. 6, 2017) (concluding that the United States Sentencing
Guidelines are not subject to a void for vagueness challenge
under the Fifth Amendment Due Process Clause and holding that
“[t]he residual clause in [§4B1.2(a)(2)] therefore
is not void for vagueness”); United States v.
Frady, 456 U.S. 152, 165 (1982) (stating that “a
collateral challenge may not do service for an
appeal”); United States v. Brown, No. 16-7056,
2017 U.S. Dist. LEXIS 132848, 2017 WL 3585073, at *3 (4th
Cir. Aug. 21, 2017) (concluding that first § 2255 motion
that sought to apply Johnson to the
pre-Booker guidelines was outside the statute of
limitation); Raybon v. United States, No. 16-2522,
2017 U.S. App. LEXIS 15029, 2017 WL 3470389, at *2-3 (6th
Cir. Aug. 14, 2017) (concluding that movant could not rely on
statute of limitation as set forth in 28 U.S.C. §
2255(f)(3) because Johnson did not recognize a new
“Constitutional right not to be sentenced as a career
offender under the residual clause of the mandatory
Sentencing Guidelines”); United States v.
Benedict, 855 F.3d 880, 888-89 (8th Cir. 2017) (holding
that prior convictions qualified under the residual clause of
USSG §4B1.2(a)(2) (2014)); In re Sams, 830 F.3d
1234, 1240 (11th Cir. 2016) (reiterating that mandatory
sentencing guidelines are not subject to vagueness challenges
and “Welch did not make Johnson
retroactive for purposes of a successive § 2255 motion
based on the Guidelines”); In re Sapp, 827
F.3d 1334, 1336 (11th Cir. 2016) (holding that the criteria
for filing a successive § 2255 motion had not been met
because Welch does not make Johnson
retroactive for purposes of challenging the sentencing
guidelines and mandatory sentencing guidelines cannot be
unconstitutionally vague); Donnell v. United States,
826 F.3d 1014, 1017 (8th Cir. 2016) (refusing to create
“a second rule that would apply Johnson and
the constitutional vagueness doctrine to a provision of the
advisory sentencing guidelines”); In re
Griffin, 823 F.3d 1350, 1354-55 (11th Cir. 2016)
(explaining that sentencing guidelines, whether mandatory or
advisory, only limit a judge's discretion and do not
violate a defendant's right to due process by reason of
being vague); Richardson v. United States, 623 F.
App'x 841, 842-43 (8th Cir. 2015) (denying authorization
to file a successive motion to vacate, set aside or correct
sentence under 28 U.S.C. § 2255 with respect to
movant's challenge to his sentencing guidelines
calculations because any extension of the rule in
Johnson is not a new substantive rule under
Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060
(1989)); United States v. Matchett, 802 F.3d 1185,
1193-96 (11th Cir. 2015) (concluding that advisory sentencing
guidelines, such as USSG §4B1.2(a)(2), cannot be
unconstitutionally vague); Sun Bear v. United
States, 644 F.3d 700, 704 (8th Cir. 2011) (en banc)
(explaining that, although it appears to be broad, 28 U.S.C.
§ 2255 does not provide a remedy for “all claimed
errors in conviction and sentencing.” (quoting
United States v. Addonizio, 442 U.S. 178, 185
(1979))); Never Misses a Shot v. United States, 413
F.3d 781, 783 (8th Cir. 2005) (holding that “the
‘new rule' announced in Booker does not
apply to criminal convictions that became final before the
rule was announced, and thus does not benefit movants in
collateral proceedings”); United States v.
Wivell, 893 F.2d 156, 159-60 (8th Cir. 1990) (holding
that Guidelines provisions are “not susceptible
to” constitutional vagueness challenges). Having done
so, the court concludes that, despite being sentenced
pre-Booker, the movant's motion is time-barred
because it does not assert a right “newly recognized by
the Supreme Court and made retroactively applicable to cases
on collateral review.” 28 U.S.C. § 2255(f)(3).
the movant's motion to vacate, set aside or correct
sentence pursuant to 28 U.S.C. § 2255 (civil docket no.
1) and motion to hold action in abeyance (civil docket no. 2)
are denied. As for a certificate of appealability, the movant
has not made the requisite showing. See 28 U.S.C.
§ 2253(c)(2). Accordingly, a certificate of
appealability under 28 U.S.C. § 2253 will not issue.