United States District Court, D. Maryland
Richard D. Bennett United States District Judge
December 16, 2014, Petitioner Gordon Turner
("Petitioner" or "Turner") pled guilty to
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1). (ECF No. 21.) During
Petitioner's sentencing hearing, this Court found that
Petitioner had a prior Maryland conviction for resisting
arrest that constituted a "crime of violence" and
one prior conviction that constituted a "controlled
substance offense" and accordingly his sentencing
offense level increased by ten under United States Sentencing
Guideline (U.S.S.G.) § 2K2.1 (a)(2). Petitioner was then
sentenced to a term of seventy (70) months imprisonment. (ECF
year later, the Supreme Court in Johnson v. United
States, __U.S.__, 135 S.Ct. 2551 (2015) struck down the
residual clause of the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e)(2)(B)(ii) as unconstitutionally vague.
Petitioner subsequently filed a Motion to Vacate requesting
re-sentencing in light of Johnson. (ECF No. 34.)
Five days later, the Office of the Federal Public Defender
(OFPD) also filed a motion on behalf of Petitioner under 28
U.S.C. § 2255, arguing that because the "Career
Offender" provision in the Sentencing Guidelines
includes the identical residual clause as that struck down in
Johnson, it is also void for vagueness. (ECF No.
2017, however, the Supreme Court held in Beckles v.
United States, U.S., 137 S.Ct. 886 (2017) that the
advisory guidelines were not subject to Johnson
challenges. Subsequent to that decision, the OFPD informed
Petitioner that in light of Beckles it would no
longer be able to represent him. On September 18, 2017, the
OFPD filed a Motion to Withdraw as Counsel (ECF No. 38),
which this Court granted. (ECF No. 39.)
before this Court are Petitioner's Motions to Vacate
Under 28 U.S.C. § 2255. (ECF Nos. 34, 36.) The
parties' submissions have been reviewed, and no hearing
is necessary. See Local Rule 105.6 (D. Md. 2016).
For the reasons stated herein, Petitioner's Motions to
Vacate Under 28 U.S.C § 2255 (ECF No. 34, 36) are
only claim is that under Johnson, the residual
clause that this Court applied while sentencing Petitioner is
void for vagueness. Therefore, this Court must determine
whether Petitioner's resisting arrest conviction
qualifies as a "crime of violence" under the
remaining "enumerated offenses" clause or
"force" clause of U.S.S.G § 4Bl.2(a).
OFPD stated in its Motion to Withdraw as Counsel, however, in
light of Beckles this argument is without merit. As
the Beckles Court stated, "[b]ecause the
advisory Sentencing Guidelines are not subject to a due
process vagueness challenge, § 4Bl.2(a)'s residual
clause is not void for vagueness." 137 S.Ct. at 897. For
this reason, Petitioner's Motions to Vacate Under 28
U.S.C. § 2255 (ECF No. 34, 36) are DENIED.
reason stated above, Petitioner Turner's Motions to
Vacate Under 28 U.S.C. § 2255 (ECF No. 34, 36) are
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.
McDaniel, 529 U.S. 473, 484 (2000); see also
Miller-El v, Cockrell, 537 U.S. 322, 336-38 (2003).
Because reasonable jurists would not find Turner's claims
debatable, a certificate of appealability is DENIED.
separate Order follows.