Opinion
Criminal Action No. 08-12-GFVT-CJS-2 Civil Action No. 12-7237-GFVT-CJS
07-29-2019
UNITED STATES OF AMERICA, Plaintiff, v. DAVID A. WARD, Defendant.
REPORT AND RECOMMENDATION
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David A. Ward, pro se, moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. (R. 136 (amended § 2255 motion)). The United States has responded (R. 146), and the time for Ward to reply has passed (see R. 148). Accordingly, the matter is ripe for consideration and preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b). For the reasons set forth below, it will be recommended that Ward's amended § 2255 motion be denied.
I. PROCEDURAL BACKGROUND
Ward pled guilty, without a plea agreement, to conspiracy to distribute heroin, in violation of 21 U.S.C. § 846. (R. 84; R. 95, Page ID 299). After determining that Ward was a career offender under the United States Sentencing Guidelines (U.S.S.G.), see U.S.S.G. § 4B1.1, the presiding district judge sentenced him to a below-guidelines sentence of 75 months in prison, to be followed by three years of supervised release. (R. 84; R. 95, Page ID 332-33). On appeal, the sentence was affirmed. United States v. Ward, 436 F. App'x 601, 601 (6th Cir. 2011).
The full procedural background and factual history of this case is contained in the Report and Recommendation denying Ward's initial § 2255 motion. (R. 121).
Ward filed an initial § 2255 motion, arguing that his trial counsel was ineffective for failing to challenge his career-offender designation and that his appellate counsel was ineffective for failing to raise the issue on appeal. (R. 109, Page ID 446-49). The undersigned recommended that Ward's motion be denied on the merits and that a certificate of appealability (COA) not issue. (R. 121). The district judge adopted the Report and Recommendation over Ward's objections. (R. 128 and R. 129; see R. 122 and R. 123).
Ward filed a notice of appeal (R. 131), which the Sixth Circuit Court of Appeals construed as a request for a COA, Ward v. United States, No. 15-6088 (6th Cir. Aug. 22, 2016) (available at R. 139). The Sixth Circuit declined to issue a COA but remanded the case to consider Ward's motion to amend his § 2255 motion, which Ward had filed during the pendency of his COA proceedings before the Sixth Circuit. (R. 139, Page ID 630; R. 136). The district judge referred the motion to amend to the undersigned, and the motion was granted. (R. 140; R. 141). See Clark v. United States, 764 F.3d 653, 658 (6th Cir. 2014) ("A motion to amend is not a second or successive § 2255 motion when it is filed before the adjudication of the initial § 2255 motion is complete—i.e., before the petitioner has lost on the merits and exhausted her appellate remedies.").
In his amended § 2255 motion, Ward argues that one of the predicate offenses supporting his career-offender designation, an Indiana burglary conviction, is no longer a "crime of violence" under the residual clause definition in U.S.S.G. § 4B1.2(a)(2) (2009) in light of United States v. Johnson, 165 S. Ct. 2551 (2015). (R. 136-1, Page ID 613-15; R. 87, PSR p. 11 (sealed)). The government argues that Ward's burglary conviction qualifies as a "crime of violence" under the so-called enumerated-offenses clause, which at the time Ward was sentenced, defined "crime of violence" to include "burglary of a dwelling." U.S.S.G. § 4B1.2(a) (2009); see United States v. Yates, 866 F.3d 723, 727 (6th Cir. 2017); (R. 147).
II. ANALYSIS
In Johnson, the Supreme Court held the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), to be unconstitutionally vague. 135 S. Ct. at 2560-63. At the time Ward was sentenced, U.S.S.G. § 4B1.2(a) (2009) contained an identically-worded residual clause. U.S.S.G. § 4B1.2(a) (2009) (defining "crime of violence" to include an offense that "involves conduct that presents a serious potential risk of physical injury to another"). Accordingly, Ward reasons that this residual clause is likewise unconstitutionally vague. (See R. 136-1, Page ID 613-15). However, although the residual clauses are the same, the constitutional implications are not.
This is revealed by Supreme Court authority arising after the parties briefed this matter. In Beckles v. United States, 137 S. Ct. 886, 895 (2017), the Supreme Court held that "the advisory Sentencing Guidelines are not subject to a vagueness challenge under the Due Process Clause and that § 4B1.2(a)'s residual clause is not void for vagueness." Accordingly, even if Ward's Indiana burglary conviction were categorized as a "crime of violence" under the residual clause, it is not impacted by Johnson. For this reason, Ward's amended § 2255 motion should be denied.
III. CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11 of the Federal Rules Governing Section 2255 Proceedings, the district court must issue or deny a COA when it enters a final order adverse to the applicant. A COA may issue only if a defendant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the requirement associated with a "substantial showing of the denial of a constitutional right" in Slack v. McDaniel, 529 U.S. 473, 484 (2000) (addressing issuance of a COA in the context of a habeas petition filed under 28 U.S.C. § 2254, which legal reasoning applies with equal force to § 2255 motions). In cases where a district court has rejected a petitioner's constitutional claims on the merits, "the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. "When a district court denies a habeas petition on procedural grounds without reaching the petitioner's underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.
In this case, reasonable jurists would not debate the denial of Ward's amended § 2255 motion or conclude that the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack, 529 U.S. at 484). Accordingly, it is recommended that a COA be denied upon entry of the final order in this matter.
IV. CONCLUSION AND RECOMMENDATION
For the reasons stated above, IT IS RECOMMENDED that:
1) Ward's amended § 2255 motion (R. 136) be denied;
2) a COA be denied in conjunction with the Court's entry of the final order in this matter;
3) Judgment in favor of the United States be entered contemporaneously with entry of the final order; and,
4) this action be stricken from the active docket of the Court.
The Court directs the parties to 28 U.S.C. § 636(b)(1) for appeal rights and mechanics concerning this Report and Recommendation, issued under subsection (B) of the statute. See also Rules Governing Section 2255 Proceedings, Rule 8(b). Within fourteen (14) days after being served with a copy of this Report and Recommendation, any party may serve and file specific written objections to any or all findings or recommendations for determination, de novo, by the District Court. Failure to make a timely objection consistent with the statute and rule may, and normally will, result in waiver of further appeal to or review by the District Court and Court of Appeals. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981).
Dated this 29th day of July, 2019.
Signed By:
Candace J . Smith
United States Magistrate Judge