Hawkins v. United States, CRIMINAL NO. 14-00021-CG-B

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

CRIMINAL NO. 14-00021-CG-B

CIVIL ACTION NO. 16-00307-CG-B

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

January 2, 2019

REPORT AND RECOMMENDATION

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, theundersigned 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 thatthe 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 (11^th 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); seealsoLynn v. UnitedStates, 365 F.3d 1225, 1232 (11^th 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 (5^th 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). However, a review of the record reflects that Johnson is inapplicable to the instant case.

In Johnson, 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."⁴ Id., 135 S. Ct. at 2557, 2558, 2563. TheJohnson court held 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), which prohibits a convicted felon from possessing a firearm, violated the Constitution's guarantee of due process. Id.

In the instant case, however, Hawkins was adjudged guilty of 21 U.S.C. § 846, conspiracy to possess with intent to distribute cocaine, and he was not sentenced under the ACCA,⁵which he appears to acknowledge when stating that the relevant clause in the ACCA is "worded nearly identical to the 'residual Clause' of the career offender guidelines," which did impact his sentencing. (Docs. 17, 32, 39). In any event, because Hawkins was not sentenced under the ACCA, any claims based on Johnson must necessarily fail.

B. Beckles v. United States offers no relief in this matter.

As noted, the Court ordered Hawkins to show cause why the Johnson decision is applicable to the instant case (Doc. 38), and in his response to the Court's order, Hawkins argued that the Johnson decision should apply because the sentencing guidelines contain very similar language to that in the ACCA, which was invalidated in Johnson. (Doc. 39). He further argued that the Court should await a 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)), to determine whether the reasoning in Johnson applies to the "residual clause" in the sentencing guidelines, found in U.S.S.G. § 4B1.2(a)(2). (Doc. 39).

On March 6, 2017, the United States Supreme Court decided Beckles v. United States, 137 S. Ct. 886, 197 L. Ed. 2d 145 (2017), holding that "the advisory Guidelines are not subject tovagueness challenges under the Due Process Clause." Id., 137 S. Ct. at 890, 892 ("Unlike the ACCA, . . . the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range. Accordingly, the Guidelines are not subject to a vagueness challenge under the Due Process Clause."). In so holding, the court rejected Hawkins' specific argument, based on Johnson, supra, that the residual clause in § 4B1.2(a)(2) of the advisory Guidelines is void for vagueness. Indeed, before the Supreme Court decided Beckles, the Eleventh Circuit likewise held that Johnson did not invalidate the residual clause in the sentencing guidelines, U.S.S.G. § 4B1.2(a)(2). See United States v. Matchett, 802 F.3d 1185, 1193-96 (2015), reh'g denied, 837 F.3d 1118 (11th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 1344, 197 L. Ed. 2d 532 (2017); see also United States v. Kirk, 636 Fed. Appx. 548, 550 (11th Cir. Jan. 28, 2016) ("nothing in Johnson precludes the application of the offense level increases or enhancements in the advisory sentencing guidelines."). Accordingly, Hawkins' Johnson claim challenging the enhancement to his sentence under the advisory Guidelines is clearly foreclosed by Beckles, Matchett, and Kirk. Accord Hancock v. United States, 2018 U.S. Dist. LEXIS 45784, *5, 2018 WL 1404900,*2 (S.D. Ala. Feb. 16, 2018), report and recommendation adopted, 2018 WL 1404400 (S.D. Ala. Mar. 20, 2018).

Accordingly, Hawkins' motion to vacate (Doc. 31) is due to be DENIED.

IV. CERTIFICATE OF APPEALABILITY

Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, the undersigned recommends that a certificate of appealability in this case be DENIED. 28 U.S.C. § 2255, Rule 11(a) ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."). The habeas corpus statute makes clear that an applicant is entitled to appeal a district court's denial of his habeas corpus petition only where a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may be issued only where ...