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Hawkins v. United States

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

January 2, 2019

SHEVARIS DEJUAN HAWKINS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

          SONJA F. BIVINS, UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 and Memorandum in Support (Docs. 31, 32), the Government's Response in Opposition (Doc. 34), and Petitioner's Response to the Court's Order to Show Cause. (Doc. 39). This action was referred to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 8(b) of the Rules Governing Section 2255 Cases and is now ready for consideration.[1] Having carefully reviewed the record, the undersigned finds that no evidentiary hearing is necessary for the disposition of this matter.[2] Upon consideration, the undersigned hereby recommends that Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 be DENIED, that this action be DISMISSED, and that judgment be entered in favor of Respondent, the United States of America, and against Petitioner, Shevaris Dejuan Hawkins. The undersigned also recommends that should Hawkins file a certificate of appealability, it should be denied as he is not entitled to appeal in forma pauperis.

         I. PROCEDURAL BACKGROUND

         Petitioner Shevaris Dejuan Hawkins was indicted on January 21, 2014, on one count of possession with intent to distribute cocaine in violation of 18 U.S.C. § 841(a)(1). (Doc. 1). Hawkins entered a plea of guilty on March 18, 2014, pursuant to a plea agreement. (Docs. 15, 17). On January 9, 2015, Hawkins was sentenced to 113 months imprisonment, to be followed by 4 years of supervised release with certain special conditions, and a special assessment of $100.00. (Doc. 29). Hawkins did not appeal his judgment.

         He filed the instant Motion to Vacate under 28 U.S.C. § 2255 and Memorandum in Support on June 20, 2016, [3] alleging that the Court erred in enhancing his sentence under the “‘residual clause' of the ‘career Offender' enhancement, ” which was ruled unconstitutionally vague by Johnson v. United States, 135 S.Ct. 2551 (2015). (Docs. 31, 32). In response, the Government argued that Johnson was inapplicable to Hawkins' case, and, to the extent that Hawkins argued that Johnson applied to the advisory guidelines used in the instant case, that argument was without merit. (Doc. 34). On October 20, 2016, this Court issued an order directing Hawkins to show cause why Johnson should apply to his case. (Doc. 38). Hawkins argued, in his response to the Court's order, that the Supreme Court had not yet addressed whether the new rule articulated in Johnson should apply to the advisory guidelines and that the Court should await the ruling in Beckles v. United States, 2016 WL 1209080 (U.S. June 27, 2016)(granting certiorari in Beckles v. United States, 616 Fed.Appx. 415 (11th Cir. 2015)), for that determination.

         This motion is now ripe for review.

         II. HABEAS STANDARD

         The limited scope of habeas relief is well established, as this Court has recognized:

Collateral relief is an extraordinary remedy which “may not do service for a [] [direct] appeal.” United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); see also Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (“Courts have long and consistently affirmed that a collateral challenge, such as a § 2255 motion, may not be a surrogate for a direct appeal.”). A defendant who has waived or exhausted his right to appeal is presumed to stand “fairly and finally convicted.” Frady, 456 U.S. at 164. Unless a claim alleges a lack of jurisdiction or constitutional error, the scope of collateral attack has remained extremely limited. United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). Consequently, “[i]f issues are raised and considered on direct appeal, a defendant is thereafter precluded from urging the same issues in a later collateral attack . . . A defendant is, of course, entitled to a hearing of his claims, but not to duplicate hearings. The appellate process does not permit reruns.” Moore v. United States, 598 F.2d 439, 441 (5th Cir. 1979).

United States v. Evans, 2008 WL 3200694, *3, 2008 U.S. Dist. LEXIS 59836, *8-9 (S.D. Ala. Aug. 6, 2008).

         III. DISCUSSION

         Hawkins raises a single claim in his petition for relief - the Court erred in enhancing his sentence as a career offender pursuant to the ruling in Johnson v. United States, 135 S.Ct. 2251 (2015), that was made retroactive in Welch v. United States, 2016 WL 1551144 (2016). (Doc. 31). In his response to the Court's order to show cause (Doc. 38), he broadens his argument, stating that Johnson should apply retroactively to collateral cases challenging federal sentences enhanced under the residual clause of the United States Sentencing Guidelines (“U.S.S.G”) § 4B1.2(a)(2), and that the Court should await the ruling in Beckles v. United States, 2016 WL 1209080 (U.S. June 27, 2016) for guidance on that point. (Doc. 39) . For the following reasons, the Court finds that both arguments are without merit.

         A. Johnson v. United States is not applicable to this matter.

         In his Motion to Vacate and supporting Memorandum of Law, Petitioner claims that the Court erred in using the career offender enhancement, as the residual clause of the Armed Career Criminal Act (“ACCA”) was ruled void for vagueness by the Supreme Court in Johnson. (Doc. 32). ...


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