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Wright v. United States

United States District Court, N.D. Alabama, Southern Division

November 8, 2018




         Dewayne Wright, a federal prisoner, seeks to have his sentence vacated, set aside, or corrected pursuant to 28 U.S.C. § 2255, based on various Supreme Court cases, statutes, and Amendment 709 to the Sentencing Guidelines. See doc. 1-1 at 3-4. Wright also seeks nunc pro tunc relief for time he previously served in State custody. See Id. at 11. For the reasons explained below, Wright's petition is due to be denied.[1]


         Following 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 Fed.Appx. 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 hearing.” Id.


         After Wright pleaded guilty to one count of mail theft in violation of 18 U.S.C. § 1708 (Count I) and two counts of check forgery in violation of 18 U.S.C. § 495 (Counts II and III), Judge U.W. Clemon of this court sentenced Wright in April 1981 to a term of imprisonment of five years as to Count I, followed by two consecutive terms of ten years each as to Counts II and III. See doc. 6-2 at 1. Wright did not appeal his sentence. Doc. 1 at 2.

         Subsequently, in September 1981, a judge of the Circuit Court of Jefferson County, Alabama sentenced Wright to fifty-five years imprisonment on state charges of first degree robbery and first degree theft of property. Doc. 1-1 at 18. Wright was paroled from the Alabama Department of Corrections in September 2010. Id. Following his release, federal authorities arrested Wright, and Wright began serving his federal sentence in January 2012. Id. at 5. Wright subsequently filed this § 2255 motion on June 22, 2016. Doc. 1 at 12.

         III. ANALYSIS

         A. Wright's Request that the Court Vacate His Sentence Pursuant to Various Legal Authorities

         Wright seeks relief based on Johnson v. United States, 135 S.Ct. 2551 (2015), United States v. Welch, 136 S.Ct. 1257 (2016), the Armed Career Criminal Act (“ACCA”), the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the Comprehensive Crime Control Act of 1984 (“CCCA”), the Sentencing Reform Act of 1984 (“SRA”), and Amendment 709 to the United States Sentencing Guidelines. See doc. 1-1 at 2-4, 10. The court addresses Wright's arguments below.[2]

         1. Johnson, Welch, and the ACCA

         As an initial matter, Wright's motion is untimely, because Wright filed it after the one year period his conviction became final. See 28 U.S.C. § 2255(f)(1). Specifically, Wright's conviction became final in April 1981, and Wright did not file this motion until June 22, 2016. The court is not persuaded by Wright's contention that his motion is timely due to Johnson, which declared void for vagueness the portion of the 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, ” 135 S.Ct. at 2557, 2563, and Welch, which held that Johnson applies retroactively on collateral review, 136 S.Ct. at 1268. Doc. 1 at 11. While Wright is correct that, where a movant seeks to benefit from a new Supreme Court decision, the movant has one year from the date of that decision to file his motion, see Dodd v. United States, 545 U.S. 353, 360 (2005), Wright's motion does not assert a cognizable Johnson claim. According to Wright,

[t]his court sentenced [him] to imprisonment after finding that he had at least one prior felony conviction for a “crime of violence” as defined by the residual clause of the U.S.S.G. Section 4B1.2, which triggered applications [sic] of the Sentencing enhancements in U.S.S.G. Section 4B1.1. This Guideline residual clause is materially indistinguishable from the residual clause found in the Armed Career Criminal Act . . . .

Doc. 1-1 at 5-6. The Eleventh Circuit has held that “Johnson does not apply to sentences that were based on USSG § 4B1.1.” In re Clayton, 829 F.3d 1254, 1256 (11th Cir. 2016). Regardless, as a practical matter, Judge Clemon could not have sentenced Wright pursuant to the Sentencing Guidelines in 1981, because the Guidelines were the product of the United States Sentencing Commission, which was created by the Sentencing Reform Act of 1984. See 28 U.S.C. §§ 991, 994; United States v. Jordan, 915 F.2d 622, 631 ...

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