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United States v. McCalister

United States District Court, N.D. Oklahoma

February 16, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL McCALISTER, Defendant.

          REPORT AND RECOMMENDATION

          JODI F. JAYNE MAGISTRATE JUDGE UNITED STATES DISTRICT COURT

         Before the Court is Michael McCalister's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (“Motion”) (ECF No. 1006), which was referred to the undersigned for Report and Recommendation by United States District Judge Terence Kern (ECF No. 1030).

         I. Factual Background

         On September 21, 1999, Michael McCalister (“Petitioner”) was convicted by a jury of participating in a drug conspiracy. The Presentence Investigation Report (“PSR”) classified Petitioner as a “career offender” pursuant to United States Sentencing Guidelines (“USSG”) § 4B1.1 because Petitioner had committed at least two prior “crimes of violence, ” as then defined in USSG § 4B1.2(a). On May 19, 2000, applying the career offender guideline enhancement, Judge Kern sentenced Petitioner to 290 months imprisonment. Because Judge Kern sentenced Petitioner prior to the Supreme Court's decision in Untied States v. Booker, 543 U.S. 220 (2005), the guidelines were mandatory.[1]

         In his § 2255 Motion, Petitioner moves to set aside his sentence, arguing that the residual clause in § 4B1.2(a)(2) of the mandatory guidelines is unconstitutionally vague. Defendant relies on Johnson v. United States, 135 S.Ct. 2551, 2560, 2563 (2015), which struck down the residual clause in the Armed Career Criminal Act (“ACCA”) as unconstitutionally vague. In Welch v. United States, 136 S.Ct. 1257, 1268 (2016), the Supreme Court held that Johnson announced a new substantive rule that applied retroactively to cases on collateral review. The Tenth Circuit granted authorization for Petitioner to file a second or successive § 2255 motion, reasoning that it “could not verify that the district court did not designate [Petitioner] as a career offender under the residual clause.” ECF No. 1005 at 4.[2] The United States filed a response to the Motion (ECF No. 1010), and Defendant filed a pro se reply (ECF No. 1011).

         On August 21, 2017, Judge Kern issued an Order for Additional Briefs (“Briefing Order”) (ECF No. 1022). Judge Kern explained his prior rulings in other cases, discussed the legal landscape, raised concerns regarding the timeliness of the Motion, and appointed counsel for Defendant. He ordered the parties to file supplemental briefs addressing: (1) timeliness of the Motion under 28 U.S.C. § 2255(f)(3);[3] (2) application of the reasoning in Beckles v. United States, 137 S.Ct. 886 (2017), to pre-Booker guidelines sentences; and (3) any other issues the parties wished to raise. Both parties filed supplemental briefs (ECF Nos. 1027, 1029).

         Judge Kern referred the Motion to the undersigned for Report and Recommendation, and the undersigned conducted oral argument on procedural and merits issues. For the reasons explained below, the undersigned recommends dismissing the motion as untimely based on the Tenth Circuit's recent decision in United States v. Greer, --- F.3d ----, No. 16-1282, 2018 WL 721675 (10th Cir. Feb. 6, 2018). In framing the issues, the undersigned briefly explains case law prior to Greer.

         II. Timeliness

         A petitioner seeking relief under 28 U.S.C. § 2255 “must show that he can meet [its] procedural requirements.” Greer, 2018 WL 721675 at *2. “The first of these barriers is timeliness.” Id. Petitioner relies upon § 2255(f)(3) to render his motion timely. This provision permits a § 2255 motion to be filed within one year of the date on which “the right asserted [by Petitioner] was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3). The Supreme Court has recognized the “right asserted” by a § 2255 petitioner if the Court has “‘formally recognized that right in a definite way.'” Greer, 2018 WL 721675, at *4 (quoting United States v. Brown, 868 F.3d 297, 301 (4th Cir. 2017)). If the existence of the right remains an open question, then the Court has not recognized that right. Id.

         Whether the “right asserted” by Petitioner has been “formally recognized” depends on how broadly or narrowly the Johnson “right” is defined. The First Circuit explained:

[T]he government's argument turns on the degree of generality with which we define the rule adopted in [Johnson]. Does one describe the rule as being no more than the technical holding that the residual clause as employed in the ACCA is unconstitutionally vague? If so, then arguably only successive § 2255 motions based on the ACCA's residual clause would satisfy § 2255(h)(2). Or, does one describe the rule as being that the text of the residual clause, as employed in the ACCA, is too vague to provide a standard by which courts must fix sentences? If so, then one might reasonably conclude that such a rule could be relied upon directly to dictate the striking of any statute that so employs the ACCA's residual clause to fix a criminal sentence.

Moore v. United States 871 F.3d 72, 83 (1st Cir. 2017) (analyzing distinct but related question of whether a petitioner relied on “a new rule of constitutional law, made retroactive to cases on collateral review” for purposes of § 2255(h)(2) authorization). Beckles plays a role in the analysis because Justice Sotomayor stated in her concurrence that the majority opinion “at least leaves open the question whether defendants sentenced to terms of imprisonment before [Booker] may mount vagueness attacks on their sentences.” Beckles, 137 S.Ct. at 903 n.4 (Sotomayor, J., concurring).

         At the time of oral argument, the Tenth Circuit had not ruled on the timeliness issue or defined the scope of the Johnson right. Reasoning in cases from other circuits supported both parties' positions. Compare United States v. Brown, 868 F.3d 297, 302 (4th Cir. 2017) (finding § 2255 motion untimely) (“If the Supreme Court [in Beckles] left open the question of whether Petitioner's asserted right exists, the Supreme Court has not ‘recognized' that right.”); Raybon v. United States, 867 F.3d 625, 630 (6th Cir. 2017) (finding § 2255 motion untimely) (“Because [Johnson's application to residual clause in mandatory guidelines] is an open question, it is not a right that has been newly recognized by the Supreme Court let alone one that was made retroactively applicable to cases on collateral review.”) (internal quotations omitted) with Moore, 871 F.3d at 83 (granting motion to file successive § 2255 petition under § 2255(h)(2)) (petitioner made prima facie showing that Johnson created a “ new rule of constitutional law, ” which petitioner simply sought to apply “directly to another law . . . which also used the text of the residual clause, as employed in the ACCA, to provide a standard by which a court fixed his sentence”); Brown, 868 F.3d at 310 (Gregory, J., dissenting) (“The right newly recognized in Johnson is therefore clearly applicable to Brown's claim, because the mandatory Guidelines' residual clause presents the same problems of notice and arbitrary enforcement as the ACCA's residual clause at issue in Johnson.”).[4]

         Although not directly on point, the Tenth Circuit had decided United States v. Snyder, 871 F.3d 1122 (10th Cir. 2017). In Snyder, the court held that a petitioner's Johnson-based challenge to an ACCA sentence was timely. Id. The court reasoned that a petitioner “need only invoke the newly recognized right, regardless of whether or not the facts of record ultimately support the movant's claim.” Id. at 1126. “Whether or not Snyder can ultimately prevail on his motion, he asserts the right established in Johnson, to be free from a sentence purportedly authorized by the unconstitutionally vague residual clause.” Id. The majority used broad language in explaining the necessary showing ...


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