Robertson v. United States

         REPORT AND RECOMMENDATION

          SONJA F. BIVINS, UNITED STATES MAGISTRATE JUDGE

         Pending 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.^[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 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.

         I. BACKGROUND

         Robertson 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).

         On 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).

         On October 29, 2009, Robertson was sentenced to 183 months incarceration. (Doc. 125 at 2). He did not appeal his sentence.

         On May 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).

         In its 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^[3] 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.

         (Doc. 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. (Id.).

         On July 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.

         June 27, 2016), granting certiorari in Beckles v. United States, 616 Fed.Appx. 415 (11^th 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).

         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. 4, 2008).

         III. DISCUSSION

         As 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.

         A. Johnso ...