United States District Court, D. Minnesota
M. Provinzino, Assistant United States Attorney, for
Kenneth Moore, pro se.
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT
R. TUNHEIM CHIEF JUDGE UNITED STATES DISTRICT COURT
Robert Kenneth Moore is currently serving a 112-month term of
imprisonment for bank robbery. Moore now brings a 28 U.S.C.
§ 2255 motion challenging his sentence under Johnson
v. United States, 135 S.Ct. 2551 (2015). Because the
Supreme Court recently decided Johnson's holding
does not extend to the United States Sentencing Guidelines
Manual (the “Guidelines”), the Court will deny
Moore's motion to vacate, motion for an evidentiary
hearing, and motion to appoint counsel.
March 28, 2012, Moore pled guilty to one count of bank
robbery in violation of 18 U.S.C. § 2113(a). (Plea
Hr'g Min. Entry, Mar. 28, 2012, Docket No. 23.) As part
of the plea agreement, the parties stipulated that Moore was
a Career Offender as defined in § 4B1.1 and § 4B1.2
of the Guidelines,  based on three prior convictions: (1)
second-degree robbery; (2) domestic assault by strangulation;
and (3) fifth-degree assault. Based on the parties'
stipulations, the plea agreement stated that application of
the Career Offender Guideline would result in a Guidelines
range of 151 to 188 months' imprisonment. On August 2,
2012, the Court granted a downward variance and sentenced
Moore to 112 months imprisonment. (Sentencing J., Aug. 2,
2012, Docket No. 31.)
23, 2016, Moore filed a pro se motion to vacate, set
aside, or correct his sentence pursuant to § 2255. (Pro
Se Mot. to Vacate, June 23, 2016, Docket No. 34.) Moore
argues that his stipulation to being classified as a Career
Offender under the Guidelines was premised on an
understanding at the time that the definition in the
applicable Guidelines in fact applied to him. Moore also
requests that the Court appoint counsel.
motion is based on the Supreme Court's intervening
decision in Johnson v. United States, which
invalidated - as unconstitutionally vague - the residual
clause in the definition of “violent felony” in
the Armed Career Criminal Act (“ACCA”), found at
18 U.S.C. § 924(e)(2)(B)(ii). 135 S.Ct. 2551, 2557
(2015); see also Welch v. United States, 136 S.Ct.
1257, 1265 (2016) (holding that Johnson established
a new rule of substantive law, and thus, it applies
retroactively to cases on collateral review). Moore argues
that the residual clause in the definition of “crime of
violence” found in § 4B1.2(a), which is similar to
the unconstitutional residual clause in the ACCA's
definition of “violent felony, ” is
unconstitutionally vague just as the ACCA provision was
unconstitutionally vague. Moore further argues that because
the residual clause in § 4B1.2(a)(2) is invalid under
Johnson and Welch, Moore is not a Career
Offender, since his convictions for second-degree robbery and
fifth-degree assault were only considered crimes of violence
by operation of the residual clause.
August 10, 2016, the Court stayed the government's
response to Moore's motion pending the resolution of
Beckles v. United States, which the Supreme Court
decided on March 6, 2017. 137 S.Ct. 886 (2017). In
Beckles, the Supreme Court rejected extending the
Johnson holding to § 4B1.2(a)(2), reasoning
that the “Guidelines are not subject to vagueness
challenges under the Due Process Clause.” Id.
at 890. Thus, Beckles forecloses any argument that
the residual clause in § 4B1.2(a)(2) is
unconstitutionally vague under Johnson. Because this
is the only argument Moore raises in his § 2255 motion,
the Court will deny his motion.
Court will also deny Moore's request for appointment of
counsel. The Court may appoint counsel for a § 2255
motion when “the interests of justice so
require.” 18 U.S.C. § 3006A(a)(2)(B). If the Court
conducts an evidentiary hearing and certain other
requirements are met, then appointment of counsel is
mandatory. Green v. United States, 262 F.3d 715, 716
(8th Cir. 2001). However, if an evidentiary
hearing is not necessary, appointment of counsel is
discretionary. Abdullah v. Norris, 18 F.3d 571, 573
(8th Cir. 1994). Here, no evidentiary hearing is
necessary and the interests of justice do not require
appointment of counsel because Moore's claim lacks merit
for the reasons described above.
the Court may grant a certificate of appealability only where
a petitioner “has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). The petitioner must show that “the issues
are debatable among reasonable jurists, a court could resolve
the issues differently, or the issues deserve further
proceedings.” Flieger v. Delo, 16 F.3d 878,
883 (8th Cir. 1994); see also Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000). For purposes of
appeal under § 2253, the Court finds that Moore has not
shown that reasonable jurists would find the issues raised in
the § 2255 motion debatable, that some other court would
resolve the issues differently, or that the issues deserve
further proceedings. Therefore, the Court declines to grant a
certificate of appealability.
on the foregoing, and all the files, records, and proceedings
herein, IT IS HEREBY ORDERED that:
Defendant Robert Kenneth Moore's Motion to Vacate
Sentence under 28 U.S.C. § 2255 [Docket No. 34] is
Court does not certify for appeal under 28 U.S.C. §
2253(c)(2) the ...