United States District Court, S.D. Alabama, Southern Division
F. BIVINS, UNITED STATES MAGISTRATE JUDGE
before the Court is Petitioner William Thomas Robertson's
Motion to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2255 (Docs. 164, 165) and the
Government's Motion to Dismiss in response thereto. (Doc.
171) . 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 Robertson's Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. §
2255 (Doc. 164) be DENIED, that
Respondent's Motion to Dismiss (Doc. 171) be
GRANTED, that this action be
DISMISSED, and that judgment be entered in
favor of Respondent, the United States of America, and
against Petitioner, William Thomas Robertson. The undersigned
also recommends that should Robertson file a certificate of
appealability, it should be denied as he is not entitled to
appeal in forma pauperis.
was indicted on February 25, 2009, on two drug-related
counts, namely: (1) conspiracy to manufacture
methamphetamine, in violation of 21 U.S.C. § 846; and
(2) possession with the intent to distribute methamphetamine,
in violation of 21 U.S.C. § 841(a)(1) . (Doc. 65). On
April 27, 2009, pursuant to a plea agreement, Robertson
entered a guilty plea to Count Three of the superseding
indictment, conspiracy to manufacture methamphetamine, in
violation of 21 U.S.C. § 846. (Docs. 94, 96).
October 19, 2009, the United States Probation and Pretrial
Services filed a presentence investigation report detailing
Robertson's criminal history, which included convictions
for: theft of property (Mobile County Circuit Court 1989);
burglary (1989); receiving stolen property (Mobile County
Circuit Court 1989); four counts of burglary (Mobile County
Circuit Court 1991); theft of property Mobile County Circuit
Court (1991); domestic violence (Mobile County District Court
2002); domestic violence (Mobile County District Court 2003);
and possession of a controlled substance (Mobile County
Circuit Court 2004). (Doc. 115 at 14-20). Based on his
current and previous convictions, Robertson was designated a
career offender pursuant to the United States Sentencing
Guidelines (“U.S.S.G.”) § 4B1.1.
(Id. at 14, 21; Doc. 165 at 2).
October 29, 2009, Robertson was sentenced to 183 months
incarceration. (Doc. 125 at 2). He did not appeal his
6, 2016, Robertson filed the instant motion seeking
collateral relief under 28 U.S.C. § 2255. (Docs. 164,
165). In his motion to vacate, Robertson asserts two grounds
for relief: (1) that his prior burglary convictions under
§ 13A-7-7 of the Alabama Code cannot be used to support
his career offender designation under the sentencing
guidelines because of the United States Supreme Court's
decision in Descamps v. United States, 133 S.Ct.
2276 (2013); and (2) that the residual clause of the
sentencing guidelines is unconstitutionally vague in light of
the Supreme Court's ruling in Johnson v. United
States, __U.S. __, 135 S.Ct. 2551, 192 L.Ed.2d 569
(2015). (Doc. 164 at 5).
motion to dismiss, the Government argues that Robertson's
motion is untimely and, further, that Johnson does
not apply to this case. (Doc. 171). On June 3, 2016, the
Court ordered Robertson to show cause why his action should
not be dismissed as time-barred (Doc. 172), and in his
response, Robertson reiterated his previous arguments. (Doc.
176). On June 23, 2016, Robertson's counsel filed a response
to the Court's order, wherein he advised that:
[Robertson] here relies on Johnson, not
Descamps, as the mechanism through which to
collaterally attack his career offender designation.
“Descamps did not announce a new rule, and
even if it did, Descamps is not a constitutional
case.” Id. at 3. Descamps did not
provide Robertson a mechanism by which to collaterally attack
his career offender designation in a §2255 motion.
Robertson's § 2255 motion relies upon
Johnson and consequently is not time-barred.
177 at 2). Thus, per his counsel's stipulation,
Robertson's motion to vacate relies solely on his
argument that the Johnson decision applies to the
instant case and renders his career offender designation
under the sentencing guidelines unconstitutional.
5, 2016, Robertson filed a motion to hold in abeyance a
decision on his § 2255 motion, pending the United States
Supreme Court's ruling in Beckles v. United
States, 2016 WL 1209080 (U.S.
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. 179). On July 7, 2016, the
Court stayed Robertson's action pending further guidance
from the Supreme Court on the applicability of
Johnson to the sentencing guidelines at issue in the
instant case. (Doc. 180).
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, in his motion to vacate and supporting brief,
Robertson argues that his career offender enhancement under
the sentencing guidelines was unconstitutional given the
Supreme Court's holding in Johnson. (Doc. 165 at
8-9). For the following reasons, the Court finds that
Robertson's argument is without merit.