United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
K. KALLON, UNITED STATES DISTRICT JUDGE
King, a federal prisoner, seeks to have his sentence vacated,
set aside, or corrected pursuant to 28 U.S.C. § 2255 in
light of the Supreme Court's decision in Johnson v.
United States, 135 S.Ct. 2551 (2015). Doc. 1. For the
reasons explained below, King's petition is
STANDARD OF REVIEW
conviction and sentencing, 28 U.S.C. § 2255 allows a
federal prisoner to file a motion in the sentencing court
“to vacate, set aside or correct the sentence” on
the basis “that the sentence was imposed in violation
of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such a sentence, or
that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack[.]”
28 U.S.C. § 2255(a). To obtain relief under § 2255,
a petitioner must: (1) file a non-successive petition or
obtain an order from the Eleventh Circuit authorizing a
district court to consider a successive § 2255 motion,
28 U.S.C. § 2255(h), § 2255 Rule 9; (2) file the
motion in the court where the conviction or sentence was
received, see Partee v. Attorney Gen. of Ga., 451 F.
App'x 856 (11th Cir. 2012); (3) file the petition within
the one-year statute of limitations, 28 U.S.C. §
2255(f); (4) be “in custody” at the time of
filing the petition, Spencer v. Kemna, 523 U.S. 1, 7
(1998); (5) state a viable claim for relief under the
heightened pleading standards of § 2255 Rule 2(b),
see also McFarland v. Scott, 512 U.S. 849, 856
(1994); and (6) swear or verify the petition pursuant to 28
U.S.C. § 1746. Finally, “[i]n deciding whether to
grant an evidentiary hearing, a federal court must consider
whether such a hearing could enable an applicant to prove the
petition's factual allegations, which, if true, would
entitle the applicant to federal habeas relief.”
Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
However, “if the record refutes the applicant's
factual allegations or otherwise precludes habeas relief, a
district court is not required to hold an evidentiary
King pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1) (Count I),
see doc. 24 in case no. 2:14-cr-00383-AKK-TMP, Judge
Inge Johnson sentenced King to a term of imprisonment of
thirty-seven months, see doc. 35 in case no.
2:14-cr-00383-AKK-TMP. King did not file a direct appeal.
See doc. 1 at 1. As a result, his conviction became
final on May 4, 2015. King subsequently filed this § 2255
motion on June 25, 2016. Doc. 1 at 6.
asks the court to vacate his conviction and sentence in light
of Johnson v. United States, which declared void for
vagueness the portion of the Armed Career Criminal Act
(“ACCA”) that defined “violent
felony” to include offenses that “involve
conduct that presents a serious potential risk of physical
injury to another” comparable to “burglary,
arson, or extortion” or an offense that “involves
the use of explosives.” See Johnson, 135 S.Ct.
at 2557-60. As the basis for his motion, King states that his
“sentence was increased by [i]ncreasing the base
offense level in 2K2.1 because of a prior conviction that was
violent. However, that “violent crime” was not
violent in light of Johnson v. US, 135 S.Ct. 2551 (2015) . .
. .” Doc. 1 at 4. Indeed, the Plea Agreement reflects
that King had prior convictions for “Arson, Second
Degree” and “Burglary, Third Degree.”
See doc. 24 at 3 in case no. 2:14-cr-00383-AKK-TMP.
2K2.1(a)(4)(A) and 4B1.2(a) of the Sentencing Guidelines
provide for sentencing enhancements if the defendant
committed any part of the instant offense subsequent to
sustaining one felony conviction of either a crime of
violence or a controlled substance offense. Therefore, it
appears that King is arguing for extension of
Johnson to his sentence, because U.S.S.G. §
2K2.1(a) incorporates the Guidelines definition of
“crime of violence” found in § 4B1.2(a) that
mirrors the language of the invalidated ACCA residual clause.
See doc. 2 at 2. Unfortunately for King, the Supreme
Court has held that “[b]ecause the advisory Sentencing
Guidelines are not subject to a due process vagueness
challenge, § 4B1.2(a)'s residual clause is not void
for vagueness.” See Beckles v. United States,
137 S.Ct. 886, 895 (2017). Moreover, King's prior arson
and burglary convictions both qualified as crimes of violence
under the enumerated clause of the Sentencing
Guidelines' “crime of violence” definition
rather than the residual clause. See United
States v. Archer, 531 F.3d 1347, 1350 (11th Cir. 2008)
(“burglary of a dwelling” is one of the crimes
enumerated in the Sentencing Guidelines); United States
v. Rainey, 362 F.3d 733, 735 (11th Cir. 2004)
(“[A]rson is an enumerated offense in the definition of
‘crime of violence' . . . .”).
CONCLUSION AND ORDER
because King filed this motion after the one year period his
conviction became final, see 28 U.S.C. §
2255(f)(1), and Johnson does not extend to
enhancements under the Sentencing Guidelines, see
Beckles, 137 S.Ct. at 895, King's motion is
untimely, is procedurally barred, and fails to establish a
sufficient basis to vacate his sentence under 28 U.S.C.
§ 2255. Accordingly, his § 2255 petition is DENIED.
The motions to appoint counsel and to hold in abeyance, docs.
3 & 4, are MOOT. The clerk is DIRECTED to close this
 When a defendant does not appeal the
original judgment of conviction, the judgment becomes final
when the time for filing a direct appeal expires. Mederos
v. United States, 218 F.3d 1252, 1253 (11th Cir. 2000).
The Federal Rules of Appellate Procedure provide that, in a
criminal case, “a defendant's notice of appeal must
be filed in the district court within 14 days after the later
of: (i) the entry of either the judgment or the order being
appealed; or (ii) the filing of the government's notice