Opinion
No. 16-cv-744-JPG
12-27-2017
CHARLES BRUCE THOMAS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
This matter comes before the Court on a variety of pro se motions filed by defendant Charles Bruce Thomas (Docs. 3, 4 & 6). Thomas filed this pro se § 2255 motion seeking to have his sentence vacated because it was based on the Court's finding him to be career offender under the sentencing guidelines, and the Supreme Court recently held that language in the Armed Career Criminal Act, 18 U.S.C. § 924(e), similar to language in the career offender guideline was unconstitutionally vague. See Johnson v. United States, 135 S. Ct. 2551 (2015). The Court appointed the Federal Public Defender to represent Thomas in connection with his argument. Apparently, counsel suggested Thomas should withdraw his motion in light of the Supreme Court's decision in Beckles v. United States, 137 S. Ct. 886, 892 (2017), which held that sentencing guidelines are not subject to constitutional challenges based on vagueness because they merely guide a court's discretion rather than fix a sentencing range. Since counsel's suggestion to Thomas to withdraw his motion, the question has arisen whether Beckles forecloses vagueness challenges to sentences imposed prior to United States v. Booker, 543 U.S. 220 (2005), when the sentencing guidelines were mandatory. See, e.g., Vargas v. United States, No. 16-2112, 2017 WL 3699225 (2d Cir. May 8, 2017) (granting leave to file a second § 2255 motion because "Beckles did not clearly foreclose the argument that this reasoning is inapplicable to" sentences imposed before Booker). This issue is currently before the Seventh Circuit Court of Appeals in Cross v. United States, No. 17-2282, and likely before a number of other courts as well. Cross has been fully briefed and awaits oral argument.
Thomas asks the Court to discharge the Federal Public Defender, who has expressed to him a position arguably contrary to his argument for a reduction (Doc. 3), and has asked for leave to file an amended § 2255 motion to articulate his argument that Beckles does not foreclose a vagueness challenge mandatory guidelines (Doc. 4). He has also asked for the status of these pending motions (Doc. 6).
The Court hereby:
• DENIES without prejudice Thomas's motion to discharge counsel (Doc. 3) and assures Thomas that counsel will file any amended motion necessary that is reasonably supportable by law;IT IS SO ORDERED.
• DENIES Thomas's motion for leave to file a pro se amended § 2255 motion (Doc. 4) without prejudice to counsel's filing an amended motion in the future;
• GRANTS Thomas's motion for status (Doc. 6), which was provided in this order. However, the Court warns Thomas that future motions, except a motion to discharge counsel, must be filed through counsel or will be stricken. Thomas should also consult counsel regarding the status of this case rather than filing a motion for status; and
• STAYS this case until the Court of Appeals issues a ruling in Cross.
Dated: December 27, 2017
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE