United States District Court, D. Maryland
Richard D. Bennett United States District Judge
pro se Petitioner Dante Kennedy
(“Petitioner” or “Kennedy”) pled
guilty before this Court to one count of Possession of a
Firearm and Ammunition by a Felon, in violation of 18 U.S.C.
§ 922(g)(1). J., p. 1, ECF No. 21. At sentencing, this
Court found that Kennedy was an “armed career
criminal” under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), on the basis
of three prior “serious drug offenses.” Am.
Presentence Report, p. 8. This Court sentenced
Kennedy to 15 years (180 months) imprisonment, the mandatory
minimum sentence under the ACCA. J., p. 2, ECF No. 21.
Currently pending before this Court is Petitioner's
Motion to Vacate, Set Aside, or Correct Sentence (ECF No. 23)
pursuant to 28 U.S.C. § 2255, in light of the United
States Supreme Court's intervening decision in
Johnson v. United States, 135 S.Ct. 2551, 2558
(2015). Having reviewed the parties' submissions, this
Court finds that no hearing is necessary. See Local
Rule 105.6 (D. Md. 2016). For the reasons stated below, the
Johnson decision has no bearing on Petitioner's
sentence. Accordingly, Petitioner's Motion to Vacate (ECF
No. 23) is DENIED.
filed pro se are “liberally construed”
and are “held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citation omitted). Under
28 U.S.C. § 2255, a prisoner in custody may seek to
vacate, set aside or correct his sentence where: (1)
“the sentence was imposed in violation of the
Constitution or laws of the United States, ” (2) the
court lacked “jurisdiction to impose the sentence, . .
. [(3)] the sentence was in excess of the maximum authorized
by law, or [(4) the sentence] is otherwise subject to a
collateral attack.” 28 U.S.C. § 2255(a). “If
the court finds . . . that the sentence imposed was not
authorized by law or otherwise open to collateral attack, or
that there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the
judgment vulnerable to collateral attack, the court shall
vacate and set the judgment aside and shall discharge the
prisoner or resentence him or grant a new trial or correct
the sentence as may appear appropriate.” 28 U.S.C.
“armed career criminal” under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e) is
an individual who violates 18 U.S.C. § 922(g) and who
has three prior convictions for either a “violent
felony” or a “serious drug offense, ” or
both. Pursuant to 18 U.S.C. § 924(e)(1), a person who
qualifies as an armed career criminal under the ACCA is
subject to a mandatory period of imprisonment of not less
than fifteen years. In Johnson v. United States, 135
S.Ct. 2551 (2015), the United States Supreme Court held that
the “Residual Clause” of the Armed Career
Criminal Act's definition of “violent felony”
was unconstitutionally vague because its application was too
“wide-ranging” and “indeterminate.”
Johnson, 135 S.Ct. at 2557. After Johnson,
an offense can only qualify as a “violent felony”
under the ACCA if it falls within the ambit of the
“Force Clause” or is one of the ACCA's
enumerated offenses. The Johnson decision had no
impact on “serious drug offenses” under the ACCA.
contends that “his prior drug convictions do[ ] not
qualify as [ ] predicate[s] for the Armed Career Criminal Act
offender sentence enhancement” in light of the Supreme
Court's decision in Johnson v. United States.
Motion to Vacate, ECF No. 24 at 1-2. However, as discussed
supra, Johnson applies only to
“violent felony” predicate offenses under the
ACCA. Kennedy's status as an armed career criminal was
not predicated on one or more “violent felonies”
under the ACCA, but was instead supported by at least three
prior “serious drug offenses.” Prior to his 2010
arrest, Kennedy was convicted of several “serious drug
offenses” under the ACCA, including: (1) a 2002
conviction for conspiracy to distribute heroin; (2) a 2003
conviction for controlled dangerous substance -
manufacture/distribute narcotics; and (3) a 2004 conviction
for possession with intent to distribute narcotics. Am.
Presentence Report, ¶¶ 28, 31, 33. Because
Kennedy's enhanced sentence under the ACCA was
independently supported by at least three prior
“serious drug offenses, ” Johnson is
inapplicable. Accordingly, Petitioner has stated no grounds
for post-conviction relief under 28 U.S.C. § 2255.
foregoing reasons, Petitioner's Motion to Vacate, Set
Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255
(ECF No. 23) is DENIED.
to Rule 11(a) of the Rules Governing Proceedings under 28
U.S.C. § 2255, the court is required to issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant. A certificate of appealability is a
“jurisdictional prerequisite” to an appeal from
the court's earlier order. United States v.
Hadden, 475 F.3d 652, 659 (4th Cir. 2007). A certificate
of appealability may issue “only if the applicant has
made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). Where the court
denies petitioner's motion on its merits, a petitioner
satisfies this standard by demonstrating that reasonable
jurists would find the court's assessment of the
constitutional claims debatable or wrong. See Slack v.