United States District Court, S.D. Alabama, Southern Division
JAMES L. PHELPS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
F. BIVINS, UNITED STATES MAGISTRATE JUDGE
before the Court is Petitioner James L. Phelps' Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
§ 2255 (Doc. 168) and the Government's Motion to
Dismiss in response thereto. (Doc. 174). This action was
referred to the undersigned Magistrate Judge for 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. Having carefully reviewed the
record, the undersigned finds that no evidentiary hearing is
necessary for the disposition of this matter. Upon
consideration, the undersigned hereby recommends that
Phelps' Motion to Vacate, Set Aside, or Correct Sentence
under 28 U.S.C. § 2255 (Doc. 168) be
DENIED, that Respondent's Motion to
Dismiss (Doc. 174) be GRANTED, that this
action be DISMISSED, and that judgment be
entered in favor of Respondent, the United States of America,
and against Petitioner, James L. Phelps. The undersigned also
recommends that should Phelps file a certificate of
appealability, it should be denied as he is not entitled to
appeal in forma pauperis.
James L. Phelps was indicted on December 27, 2006, on three
drug-related counts, namely: (1) conspiracy to manufacture
methamphetamine, in violation of 21 U.S.C. § 846; (2)
possession with the intent to distribute methamphetamine, in
violation of 21 U.S.C. § 841(a)(1); and (3) possession
of pseudoephedrine with the intent to manufacture
methamphetamine, in violation of 21 U.S.C. § 841(c)(1) .
(Doc. 1). On March 19, 2007, Phelps entered a guilty plea to
Count One of the indictment, conspiracy to manufacture
methamphetamine, in violation of 21 U.S.C. § 846,
pursuant to a plea agreement. (Doc. 32).
23, 2007, the United States Probation and Pretrial Services
System generated a presentence investigation report detailing
Phelps' criminal history. (Doc. 46). Included in that
history were a 1993 conviction for conspiracy to possess with
intent to distribute LSD in the Southern District of Alabama
and a 2003 conviction for attempted unlawful possession of
anhydrous ammonia in the Circuit Court of Baldwin County,
Alabama. (Id. at 11-12). Based on his current and
previous convictions, Phelps was designated a career offender
pursuant to United States Sentencing Guidelines
(“U.S.S.G.”) § 4B1.1. (Id. at 9,
23, 2007, Phelps was sentenced to 188 months incarceration.
(Doc. 47 at 2). He did not appeal his sentence.
September 10, 2010, Phelps filed his first motion seeking
collateral relief under 28 U.S.C. § 2255. (Doc. 130). In
that petition, Phelps argued that he was improperly sentenced
as a career offender under the sentencing guidelines because
his conviction in the Baldwin County Circuit Court should not
have counted as one of the convictions that led to his career
offender designation. (Id. at 2). After re-filing
his petition on the Court's required forms on October 5,
2010, Phelps' first § 2255 motion was dismissed as
time-barred pursuant to 28 U.S.C. § 2255(f). (Docs. 135,
11, 2016, Phelps filed the instant petition, alleging that
his sentence is unconstitutional for essentially two reasons:
(1) the United States Supreme Court's ruling in
Johnson v. United States, ___ U.S. ___, 135 S.Ct.
2551, 192 L.Ed.2d 569 (2015), that the residual clause of the
Armed Career Criminal Act (“ACCA”) was
unconstitutionally vague, should likewise apply to the
sentencing guidelines used in this case and render those
similar provisions unconstitutionally vague; and (2) his
prior conviction in the Baldwin County Circuit Court should
not have been used for purposes of designating him a career
offender under the sentencing guidelines, as it did not
involve a crime of violence or a “controlled
substance” offense. (Doc. 168 at 3).
Respondent's motion to dismiss filed on June 14, 2016,
the Government argued that Johnson was inapplicable
to the instant case. (Doc. 174). On that same date, the Court
issued an order directing Phelps to show cause why
Johnson should apply to his case. (Doc. 175). In his
response, Phelps essentially reiterated his previous grounds
for relief. (Doc. 178 at 3). On July 7, 2016, the Court
stayed Phelps' action pending the United States Supreme
Court's 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 a determination of whether
the rule articulated in Johnson should apply to the
sentencing guidelines at issue in the instant case. (Doc.
motion is now ripe for review.
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. 4, 2008).
stated, Phelps claims in his motion to vacate that he is
entitled to collateral relief because of the Supreme
Court's ruling in Johnson v. United States, ___
U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and because
his conviction in the Baldwin County Circuit Court for
possession of anhydrous ammonia was neither a crime of
violence nor a “controlled substance;” thus, it
should not have been used to enhance his sentence as a career
offender under the sentencing guidelines. For the following
reasons, the Court finds that Phelps' arguments are
Johnson and Beckles.
Johnson v. United States, ___ U.S. ___, 135 S.Ct.
2551, 192 L.Ed.2d 569 (2015), the Supreme Court held that the
residual clause of the ACCA, set forth in 18 U.S.C §
924(e), is unconstitutionally vague because it creates
“uncertainty about how to estimate the risk posed by a
crime[ ]” and also “leaves uncertainty about how
much risk it takes for a crime to qualify as a violent
felony.”Id., 135 S.Ct. at 2557-58, 2563
(holding that the imposition of an enhanced sentence under
the ACCA's residual clause with respect to an individual
who pleaded guilty to 18 U.S.C. § 922(g), prohibiting a
convicted felon from possessing a firearm, violated ...