United States District Court, N.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE
Steven Horton, 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, Horton's
petition is DENIED.
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
Horton pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2) (Count I), see doc. 10 in case no.
1:11-cr-00446-AKK-JHE, the undersigned sentenced Horton to a
term of imprisonment of sixty-eight months and twenty-one
days, see doc. 16 in case no.1:11-cr-00446-AKK-JHE.
Horton did not file a direct appeal. See doc. 1 at
2. As a result, his conviction became final on May 23,
2012. Horton subsequently filed this § 2255
motion on June 10, 2016. Doc. 1 at 12.
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, Horton states that
his “sentencing guidelines were ‘enhanced'
because of a 3rd degree burglary on [his] record,
” and that “[t]hey said it was considered a
‘violent crime, ' so [he] got a significant amount
more time.” Doc. 1 at 4. Indeed, the Presentence
Investigation Report reflects a base offense level of 20
pursuant to U.S.S.G. §§ 2K2.1(a)(4)(A) and
4B1.2(a), because Horton's instant offense occurred
subsequent to Horton sustaining one felony conviction of
either a crime of violence or a controlled substance offense.
See Presentence Investigation Report at 7. Here,
Horton had a prior “crime of violence” conviction
for “Burglary, 3rd Degree.” See Id.
Therefore, it appears that Horton 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.
for Horton, 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,
Horton's prior burglary qualified as a crime 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). Therefore, because
Horton filed this motion well 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, Horton's motion is
untimely and also fails on the merits.
CONCLUSION AND ORDER
light of the foregoing, the court finds that Horton's
arguments are either procedurally barred or fail to establish
a sufficient basis to vacate his sentence under 28 U.S.C.
§ 2255. Accordingly, his § 2255 petition is
DENIED. The clerk is directed to close this
file, and to terminate doc. 18 in case no.