Opinion
CIV. 16-4016 CR. 05-40061
09-19-2016
GREGORY LAMAR BELL, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER STAYING CASE
Gregory Lamar Bell's ability to proceed with his motion under 28 U.S.C. § 2255 depends on the retroactive application of the rule in Johnson v. United States, 135 S.Ct. 2551 (2015), to the career offender sentencing guideline, USSG § 4B1.1. In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), is unconstitutionally vague because it creates uncertainty about how to evaluate the risks posed by a crime and how much risk it takes to qualify as a violent felony. Johnson, 135 S.Ct. at 2557-58. The Supreme Court eventually made this new constitutional rule retroactive to cases on collateral review. See Welch v. United States, 136 S.Ct. 1257, 1268 (2016).
On June 20, 2016, the Eighth Circuit denied a motion for authorization to file a second or successive § 2255 in Donnell v. United States, 826 F.3d 1014 (8th Cir. 2016). In Donnell, the Eighth Circuit concluded that although Johnson announced a new rule that the residual clause of the ACCA is unconstitutional, Johnson did not announce a new rule that the sentencing guideline's residual clause is unconstitutional. The Eighth Circuit stated that Donnell was urging "the creation of a second new rule that would apply Johnson and the constitutional vagueness doctrine to a provision of the advisory sentencing guidelines" a rule that has "not been recognized by the Supreme Court or made retroactive on collateral review." The Second, Fourth, and Tenth Circuits have gone the other way, granting authorization to file second or successive petitions seeking to apply Johnson to strike down the residual clause in USSG § 4B1.1. Blow v. United States, 2016 WL 3769712, at *2 (2d Cir. July 14, 2016) (per curiam); In re Hubbard, 825 F.3d 225, 235 (4th Cir. 2016); In re Encinias, 821 F.3d 1224, 1226 (10th Cir. 2016) (per curiam).
The Eighth Circuit may authorize a successive motion to vacate a sentence or conviction if the inmate "makes a prima facie showing" that his proposed claim 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)(3)(C), 2255(h)(2).
Compare United States v. Taylor, 803 F.3d 931 (8th Cir. 2015) (per curiam) (government conceded Taylor's sentence should be vacated and remanded given Johnson decision, and Eighth Circuit remanded for district court to determine "whether the residual clause of the career offender guideline is unconstitutional," stating that the "reasoning in Wivell that the guidelines cannot be unconstitutionally vague because they do not proscribe conduct is doubtful after Johnson"). --------
Shortly after the Eighth Circuit's decision in Donnell, the United States Supreme Court granted a writ of certiorari in Beckles v. United States, 2016 WL 1029080, Case No. 15-8544 (June 27, 2016), on the following issues: (1) whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in U.S.S.G. § 4B1.2(a)(2); (2) whether Johnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a "crime of violence" only in the commentary to U.S.S.G. § 4B1.2, remains a "crime of violence" after Johnson. See Question Presented, Beckles v. United States, Supreme Court Case No. 15-8544.
In supplemental briefs, both Bell and the United States recognize that it would be appropriate to stay this case pending the dispositive decision in Beckles. Although Bell would prefer that his § 2255 motion be granted, this Court agrees that a stay is more appropriate in light of the Eighth Circuit's Donnell opinion indicating that Johnson does not apply to the sentencing guidelines. See N.M. ex rel L.R. v. Special Sch. Dist. No. 1, 512 F.3d 455, 459 (8th Cir. 2008) (holding that Eighth Circuit precedent "is controlling until overruled by our court en banc, by the Supreme Court, or by Congress."). Accordingly,
IT IS ORDERED that Gregory Lamar Bell's motion under 28 U.S.C. § 2255 is stayed pending the United States Supreme Court's decision in Beckles v. United States, Supreme Court Case No. 15-8544, regarding the retroactivity of Johnson to the residual clause of the career offender sentencing guideline.
Dated this 19th day of September, 2016.
BY THE COURT:
/s/_________
Lawrence L. Piersol
United States District Judge ATTEST:
JOSEPH HAAS, CLERK BY: /s/_________
(SEAL) DEPUTY