United States District Court, D. Connecticut
RULING AND ORDER
N. Chatigny United States District Judge
Nelson, proceeding pro se, moves pursuant to 28
U.S.C. § 2255 to vacate his sentence arguing that his
base offense level under U.S.S.G. § 2K2.1(a) should have
been 20, rather than 24, because his prior state conviction
for possession of narcotics with intent to sell did not
qualify as a “controlled substance offense”
supporting enhanced punishment under the guideline. This is
Nelson's second motion pursuant to § 2255. See
Nelson v. United States, No. 16-cv-985 (RNC) (D. Conn.
Apr. 3, 2017). Under § 2255(h), a second or successive
motion challenging the same sentence is allowed only if the
Court of Appeals certifies that the motion is based on either
“newly discovered evidence” or a “new rule
of constitutional law made retroactive to cases on collateral
review by the Supreme Court.” See Triestman v.
United States, 124 F.3d 361, 367-372 (2d Cir. 1997).
Nelson has not obtained a certificate. Ordinarily, when a
second motion is filed without a certificate, the District
Court should transfer the case to the Court of Appeals.
See Liriano v. United States, 95 F.3d 119,
123 (2d Cir. 1996) (per curiam). However, transfer is
unnecessary when the motion is wholly without merit. See
Powell v. United States, Nos. 95-CR-08-A, 13-CV-42-A,
2014 WL 2047884, at *2 (W.D.N.Y. May 19, 2014). For reasons
that follow, I conclude that the motion must be dismissed.
underlying criminal case, Nelson pleaded guilty to possession
of a firearm by a convicted felon and conspiracy to possess
with intent to distribute 28 grams or more of crack cocaine.
See Plea Agreement at 1, United States v.
Nelson, No. 13-cr-27 (RNC), ECF No. 199. The presentence
report calculated the guideline range using a base offense
level of 24 under U.S.S.G. § 2K2.1(a)(2) in light of
Nelson's previous state convictions for assault and
possession of narcotics with intent to sell. The base offense
level of 24 led to a total offense level of 29 and a
guideline imprisonment range of 121-151 months. Nelson
objected that the narcotics conviction did not qualify as a
“controlled substance offense” within the meaning
of the guideline and argued for a base offense level of 20
under U.S.S.G. § 2K2.1(a)(4), which would have resulted
in a total offense level of 25 and a range of 84-105 months.
sentencing hearing, I agreed with the Probation Office that
the correct base offense level was 24 but sentenced Nelson to
90 months' imprisonment, which I found to be sufficient
but not harsher than necessary. At the hearing, I
specifically pointed out that the sentence of 90 months was
within the range that would apply if the base offense level
were 20 and made it clear that the same sentence would have
been imposed in any event.
2016, Nelson moved to vacate his sentence on the ground that
his prior assault conviction should not have been used to
increase his base offense level. See Mot. Vacate
Sentence ¶ 7-9, Nelson v. United States, No.
16-cv-985 (RNC), ECF No. 1. Relying on Johnson v. United
States, 135 S.Ct. 2551 (2015), which held that the
“residual clause” of the Armed Career Criminal
Act was unconstitutionally vague, he argued that the
identically worded definition of “crime of
violence” in the U.S.S.G. § 4B1.2(a) is also void
for vagueness. The Government moved for an extension of time
to file its response so that Nelson would have an opportunity
to withdraw the motion in view of the intervening decision in
Beckles v. United States, 137 S.Ct. 886 (2017),
which held that the Guidelines are not subject to a vagueness
challenge. Id. at 895. Nelson's counsel then
filed a notice of voluntary dismissal. Soon after the notice
was approved, Nelson filed the present pro se motion
seeking to vacate his sentence on the ground that his state
narcotics conviction should not have been used to increase
the base offense level.
petitioner voluntarily withdraws a § 2255 motion, a
later motion will be considered successive, and thus subject
to the requirement that the movant obtain a certificate from
the Court of Appeals, if the withdrawal occurred in
circumstances making it clear that the movant knew the motion
was without merit. See Thai v. United States, 391
F.3d 491, 495-96 (2d Cir. 2004). In a situation similar to
the present case, a petitioner who received a sentencing
enhancement under U.S.S.G. § 4B1.2(a) sought to vacate
his sentence based on Johnson. See Stevenson v.
United States, No. 17-cv-0580-A, 2017 WL 3699309, at *1
(W.D.N.Y. Aug. 28, 2017). The petitioner withdrew his motion
after the Supreme Court decided Beckles. The
District Court concluded that the withdrawn motion counted
for purposes of the certification requirement because there
was no reasonable explanation for the withdrawal other than
its lack of merit in light of Beckles. Id.
the same conclusion here. Nelson withdrew his prior motion
after the Government sought an extension of time to give his
counsel an opportunity to consult with him about withdrawing
the motion in light of Beckles. The notice of
withdrawal subsequently filed did not provide a reason for
the withdrawal. In the context provided by the
Government's motion, however, the reason had to be the
impact of Beckles, which rendered Nelson's claim
meritless. In the circumstances, the withdrawal was akin to a
voluntary dismissal with prejudice. Therefore, the present
motion is successive and the certification requirement
obtain a certificate, Nelson would have to show that he
relies on a new rule of constitutional law made retroactive
to cases on collateral review. In his motion, he states that
he relies on the Supreme Court's decision in Mathis
v. United States, 136 S.Ct. 2243 (2016). The Second
Circuit has held that Mathis does not establish a
new rule of constitutional law for purposes of certifying
successive motions under § 2255. See Washington v.
United States, 868 F.3d 64, 65 (2d Cir. 2017) (per
curiam). In Washington, the petitioner sought
permission to file a successive motion making the same
arguments Nelson makes here. The Second Circuit denied the
request explaining that “the Mathis Court was
interpreting [the] ACCA, not the Constitution.”
Id. at 66.
a certificate were unnecessary in this case (i.e. even if the
prior motion did not count for purposes of the certification
requirement), Nelson still would not be able to obtain relief
from his sentence. The record clearly establishes that if the
guideline range had been calculated using a base offense
level of 20, the same sentence of 90 months would have been
imposed. When the record makes it clear that the same
sentence would have been imposed in any event, a § 2255
motion to vacate the sentence is properly denied. See
Morales v. United States, No. 09 Civ. 4394(WHP), 2011 WL
3423937, at *3 (S.D.N.Y. Aug. 3, 2011); cf. United States
v. Shuster, 331 F.3d 294, 297 (2d Cir. 2003) (reviewing
court need not adjudicate Sentencing Guidelines dispute
concerning enhancement when record makes it clear that
sentence would remain the same in any event).
the motion is hereby dismissed. No. certificate of