USA v. Brown et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00201-MR
CRIMINAL CASE NO. 1:00-cr-00069-MR-3
GEORGE MCBRIDE, )
)
)
Petitioner, )
)
vs. ) MEMORANDUM OF
) DECISION AND ORDER
UNITED STATES OF AMERICA, )
)
Respondent. )
________________________________ )
THIS MATTER is before the Court on Petitioner’s Motion to Vacate,
Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [Doc. 1], and in light
of Petitioner’s Supplemental Memorandum [Doc. 10], in which Petitioner
concedes that his claim is time-barred. Petitioner is represented by Jared
Paul Martin and Joshua Carpenter of the Federal Defenders of Western
North Carolina.
BACKGROUND AND DISCUSSION
On January 12, 2001, a jury found Petitioner guilty of conspiracy to
possess with intent to distribute cocaine. [Crim. Case No. 1:00-cr-69-MR-3,
Doc. 79: Jury Verdict]. The presentence report (PSR) found that Petitioner
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had two qualifying prior convictions that triggered the career-offender
enhancement under U.S.S.G. § 4B1.2: (1) a 1987 California conviction for
involuntary manslaughter; and (2) a 1993 California conviction for discharge
of a firearm with gross negligence. See [Id., Doc. 104 at ¶¶ 23, 29, 30: PSR].
Based on the career-offender enhancement, Petitioner faced a guidelines
range of 360 months to life. See [Id. at ¶ 47]. On August 17, 2001, this Court
imposed a sentence of life. [Id., Doc. 112: Judgment].
On June 26, 2015, the Supreme Court held in Johnson v. United States
that the residual clause of the Armed Career Criminal Act (“ACCA”) — which
covered any offense that “otherwise involves conduct that presents a serious
potential risk of physical injury to another” — is “unconstitutionally vague.”
135 S. Ct. 2551, 2557 (2015). Based on that holding, the Court concluded
that “imposing an increased sentence under the residual clause . . . violates
the Constitution’s guarantee of due process.” Id. at 2563. On April 18, 2016,
the Supreme Court held in Welch v. United States, 136 S. Ct. 1257, 1265
(2016), that Johnson is retroactively applicable on collateral review to claims
that the defendant was improperly sentenced as an armed career criminal.
On around June 23, 2016, Petitioner filed the underlying motion to
vacate though counsel, raising a Johnson claim. [Doc. 1]. In the motion to
vacate, Petitioner argued that, under Johnson, his prior convictions for
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discharge of a firearm with gross negligence and involuntary manslaughter
no longer qualify as career-offender predicates under Johnson.
On September 12, 2016, the Court placed Petitioner’s motion in
abeyance pending the outcome of Beckles v. United States, Supreme Court
No. 15-8455, in which the petitioner argued that his career-offender sentence
was erroneously enhanced by an unconstitutionally vague residual clause of
U.S.S.G. § 4B1.2. [Doc. 8]. On March 6, 2017, the Supreme Court held in
Beckles that “the advisory Guidelines are not subject to vagueness
challenges.” 137 S. Ct. 886, 890 (2017). The Court reasoned that, because
the guidelines are not mandatory, due process is not implicated. Beckles did
not, however, resolve the question of whether Johnson’s constitutional
holding applies retroactively to those defendants, like Petitioner, who were
sentenced before United States v. Booker, 543 U.S. 220 (2005), when the
Sentencing Guidelines were mandatory rather than advisory. Because this
very issue was pending in the Fourth Circuit Court of Appeals, the
Government filed a motion to stay pending a decision in United States v.
Brown, No. 16-7065, which this Court granted on June 30, 2017. [Docs. 3,
4].
The Fourth Circuit decided Brown on August 21, 2017, holding that
Johnson did not apply to cases in which defendants were sentenced under
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the pre-Booker Sentencing Guidelines. United States v. Brown, 868 F.3d
297 (4th Cir. 2017). The Fourth Circuit denied a motion for rehearing en
banc, United States v. Brown, 891 F.3d 115 (4th Cir. 2018), and the Supreme
Court denied certiorari, Brown v. United States, No. 17-9276, 2018 WL
2877128 (U.S. Oct. 15, 2018).
On November 3, 2018, Petitioner filed a supplemental memorandum
in light of the Supreme Court’s denial of certiorari in Brown. In the
supplemental memorandum, Petitioner states that the parties agree that,
based on the Supreme Court’s denial of certiorari, Petitioner’s claim is
foreclosed by Brown as untimely. As Petitioner concedes that his petition is
untimely, Petitioner’s motion will be denied and dismissed.
Finally, the Court notes that Petitioner seeks an order from the Court
granting a certificate of appealability. Petitioner essentially contends that
reasonable jurists would disagree over the constitutionality of the Court’s
denial of a motion to vacate as untimely in which a petitioner raises a
Johnson claim where the petitioner was sentenced pre-Booker. The Court
recognizes that Chief Judge Gregory wrote a dissent in the Fourth Circuit’s
Brown decision, arguing that the petitioner there should be entitled to relief
under Johnson and after Beckles. The Court also recognizes that Justice
Sotomayor wrote a dissent in the Supreme Court’s decision denying the
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petition for certiorari in Brown, in which Justice Ginsburg joined.
Nevertheless, the Court of Appeals’ decision in Brown is binding. Whether
this Court or other reasonable jurists may differ on whether Brown was
correctly decided, it cannot reasonably be disputed that the holding of Brown
is binding on this Court and on subsequent panels of the Court of Appeals.
As Brown is now settled law in this circuit, the Court declines to grant
a certificate of appealability in this action. The Court finds that the Petitioner
has not made a substantial showing of a denial of a constitutional right. See
generally 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322,
336-38 (2003) (in order to satisfy § 2253(c), a “petitioner must demonstrate
that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong”) (citing Slack v. McDaniel, 529 U.S.
473, 484-85 (2000)). Petitioner has failed to demonstrate both that this
Court’s dispositive procedural rulings are debatable, and that the Motion to
Vacate states a debatable claim of the denial of a constitutional right. Slack
v. McDaniel, 529 U.S. 473, 484-85 (2000). As a result, the Court declines to
issue a certificate of appealability. See Rule 11(a), Rules Governing Section
2255 Proceedings for the United States District Courts, 28 U.S.C. § 2255.
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O R D E R
IT IS THEREFORE ORDERED that Petitioner’s Section 2255 Motion
to Vacate, Set Aside, or Correct Sentence [Doc. 1] is DENIED and
DISMISSED with prejudice.
IT IS FURTHER ORDERED that the Court declines to issue a
certificate of appealability.
IT IS SO ORDERED.
Signed: November 13, 2018
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