United States District Court, D. Maryland
J. MESSITTE UNITED STATES DISTRICT JUDGE.
Glascoe, through counsel, has filed a Motion to Vacate
Sentence pursuant to 28 U.S.C. § 2255. ECF No. 71. For
the reasons stated below, the Court DENIES
October 4, 2012, Glascoe pled guilty to one count of
possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g). On January 30, 2013, this Court
sentenced him to a term of 87 months imprisonment after
finding that he had two prior convictions that qualified as
"crimes of violence" under U.S.S.G. §
4B1.2(a), which in turn resulted in a ten-level increase in
his offense level under U.S.S.G. § 2K2.1(a)(2).
Specifically, the Court found that Glascoe had a second
degree assault conviction and a resisting arrest conviction,
both of which qualified as "crimes of violence."
January 31, 2014, Glascoe filed a Motion for Writ of Habeas
Corpus under 28 U.S.C. § 2255, alleging ineffective
assistance of counsel because his trial attorney failed to
file a notice of appeal. ECF No. 45. The Court appointed
counsel for Glascoe and, on July 30, 2015, appointed counsel
filed a "Second Supplemental Memorandum" in support
of Glascoe's First Motion to Vacate. ECF No. 64, 71. In
addition to revisiting the ineffective assistance of counsel
claim that was the subject of the First Motion to Vacate, the
Second Supplemental Memorandum also sought relief under
recent Supreme Court cases Johnson v. United States,
___U.S. ___, 135 S.Ct. 2551 (2015), and Descamps v.
United States, ___ U.S. ___, 133 S.Ct. 2276 (2013).
These grounds for relief were not raised in either
Glascoe's First Motion to Vacate, ECF No. 45, or his
filings attendant thereto, ECF Nos. 47, 53.
an evidentiary hearing, the Court denied Glascoe's First
Motion to Vacate with regard to the ineffective assistance of
counsel claims but severed the Second Supplemental
Memorandum, construing it as a Second Motion to Vacate under
§ 2255 in view of the new grounds claimed under
Johnson and Descamps. ECF No. 72. This is
the motion currently pending before the Court.
February 29, 2016, the Office of the Federal Public Defender
notified Chief Judge Blake of the District Court of Maryland
that Glascoe was one of 459 defendants it had identified as
possibly being eligible for relief under 28 U.S.C. §
2255 on the grounds that the new rule of constitutional law
announced in Johnson, held to apply retroactively to
cases on collateral review by Welch v. United
States, 136 S.Ct. 1257 (2016), might apply to his case.
ECF No. 82. Chief Judge Blake agreed and appointed the
Federal Public Defender to assist Glascoe in preparing a
second § 2255 petition. Id.
then filed a motion pursuant to 28 U.S.C. §§ 2244,
2255(h) in the Fourth Circuit seeking authorization to file a
second or successive § 2255 motion. ECF No. 83. On June
17, 2016, the Fourth Circuit granted him that authorization
(id), and on the same day, the Federal Public
Defender filed a new Motion to Correct Sentence under §
2255 as a separate civil suit. ECF No. 84. On September 29,
2017, the Court denied the motion. ECF No. 87. Because
Glascoe raises the same arguments in the present motion, it
will not be granted.
argues that, in light of the Supreme Court's decision in
Johnson, his prior convictions for second degree
assault and resisting arrest are no longer "crimes of
violence." In Johnson, the Supreme Court struck
down the Armed Career Criminal Act's ("ACCA")
residual clause (18 U.S.C. § 924(e)(2)(B)(ii)) as
unconstitutionally vague. 135 S.Ct. at 2557. Glascoe argues
that it follows from Johnson that the identical
residual clause in the career offender provision of the
Sentencing Guidelines (U.S.S.G. § 4B1.2(a)(2)) is also
void for vagueness. Thus, he argues, his crimes must fall
under the "force clause" of the career offender
provision of the Guidelines to constitute crimes of violence
and, using the categorical approach of Descamps, he
argues they cannot. However, on March 6, 2017, the Supreme
Court held in Beckles v. United States, ___ U.S.
___, 137 S.Ct. 886 (2017) that Johnson does not
apply to U.S.S.G. § 4B1.2(a)(2) because, unlike the
ACCA, the Guidelines are advisory only. In other words,
challenges under § 2255 to sentences imposed under the
sentencing guidelines are not subject to Johnson
Glascoe's Motion rests entirely on the argument that
Johnson applies to his claim, the Court DENIES his
Motion to Vacate Sentence Under 28 U.S.C. § 2255.
separate Order will ISSUE.
To the extent the Second
Supplemental Memorandum provides support for the ineffective
assistance of counsel claim in Glascoe's First Motion to
Vacate, that claim was denied by the ...