United States District Court, D. Connecticut
RULING ON MOTION TO VACATE, SET ASIDE, OR CORRECT
A. Bolden United States District Judge
Blackmon (“Petitioner”) filed a successive
petition for a writ of habeas corpus, moving to vacate, set
aside, or correct his sentence, under 28 U.S.C. § 2255.
Successive Motion to Vacate, Set Aside, or Correct Sentence,
dated June 26, 2016 (“Pet'r's Mot.”), ECF
No. 1; see also Petitioner's Memorandum in
Support of Motion, dated Aug. 4, 2017 (“Pet'r's
Mem.”), ECF No. 6.
awaited approval from the Second Circuit under 28 U.S.C.
§ 2244, and then delayed decision because of a stay
entered by the Second Circuit, see Mandate Granting
Motion to File Successive 28 U.S.C. § 2255 Motion, dated
Aug. 10, 2016 (“Mandate”), ECF No. 5, the motion
is now ripe for review.
reasons explained below, the Court DENIES
Mr. Blackmon's motion to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255 and
DISMISSES his petition.
FACTUAL AND PROCEDURAL BACKGROUND
22, 1992, a federal grand jury returned an indictment against
Mr. Blackmon, inter alia, on a charge of conspiracy
to possess with intent to distribute cocaine, in violation of
21 U.S.C. §§ 846 and 841(a)(1). See
Pet'r's Mot; see also Judgment, United
States v. Blackmon, dated Aug. 31, 1993, annexed as Ex.
1 to Petition, ECF 1-1.
18, 1993, after a trial in the United States District Court
for the District of Connecticut before United States District
Judge Ellen Bree Burns, a jury convicted Mr. Blackmon of one
count of conspiracy to possess with intent to distribute
cocaine, in violation of 21 U.S.C. §§ 846 and
841(a)(1). See Judgment.
August 31, 1993, under the then-mandatory United States
Sentencing Guidelines (“Sentencing Guidelines”),
Mr. Blackmon received a sentence of 292 months in prison, to
be followed by five years of supervised release. Id.
Burns determined that Mr. Blackmon was a “career
offender” under Section 4B1.1 of the Sentencing
Guidelines. Pet'r's Mem. at 2; Government's
Amended Response to Motion (“Am. Resp.”), dated
Aug. 25, 2017, ECF No. 8 at 3. Mr. Blackmon had satisfied all
three criteria for a “career offender” under the
Sentencing Guidelines because he (1) was over eighteen years
old at the time of his offense; (2) was convicted of a
“controlled substance offense”; and (3) had two
prior convictions for “crimes of violence”:
assault in the second degree with a firearm in October 1990,
and manslaughter in the first degree in November 1990.
See Pet'r's Mem at 1; US. Sentencing
Comm'n Guidelines Manual § 4B1.1 (eff Nov. 1, 1992
to Oct. 31, 1993).
of this finding, Mr. Blackmon's criminal history category
on the sentencing table increased by two levels, from IV to
VI. As a result, Mr. Blackmon's Sentencing Guidelines
range increased from 235-293 months to 292-365 months.
See U.S. Sentencing Comm'n Guidelines Manual
§ 5A (eff. Nov. 1, 1992 to Oct. 31, 1993). A sentence of
292 months thus was the lowest possible sentence under the
then higher mandatory Guidelines range.
Direct Appeal of Sentence
Blackmon appealed his “career offender”
sentencing enhancement and argued that the Sentencing
Commission did not have the “authority to promulgate
Application Note 1.” United States v. Jackson,
60 F.3d 128, 131 (2d Cir. 1995). He argued “that a
prior drug conspiracy conviction [could not] be a predicate
for career offender status[, ]” but did not dispute
that his prior convictions for manslaughter in the first
degree and assault in the second degree with a firearm
constituted crimes of violence. See Id. at 130-31
(“In this case, Blackmon was over eighteen years of age
and had two prior convictions, one for manslaughter and one
for assault in the second degree with a firearm. As a result,
he satisfied the first and third elements of § 4B1.1, a
fact that Blackmon does not contest.”).
14, 1995, the Second Circuit upheld the Sentencing
Commission's authority to issue the career offender
provision and affirmed Mr. Blackmon's “enhanced
sentence as a career offender.” Id. at 133.
Blackmon then filed a petition for a writ of certiorari to
the United States Supreme Court, which the Supreme Court
denied. Blackmon v. United States, 516 U.S. 1130
Previous § 2255 Motion
3, 1997, Mr. Blackmon filed his first motion to vacate his
sentence under 28 U.S.C. § 2255. Pet'r's Mem. at
3, Am. Resp. at 6.
that year, Judge Burns denied that motion.
April 13, 1998, Mr. Blackmon appealed the denial to the
United States Court of Appeals for the Second Circuit.
See Blackmon v. United States, No. 98-2333 (2d Cir.
Apr. 13, 1998) (notice of appeal).
February 16, 2000, the Second Circuit denied his motions to
proceed in forma pauperis, for appointment of
counsel, and for a certificate of appealability. See
Blackmon v. United States, No. 98-2333 (2d Cir. Feb. 16,
2000) (order denying motions and dismissing appeal, and
finding that “appellant has not made a
‘substantial showing of the denial of a constitutional
right.'”) (citing 28 U.S.C. § 2253(c)(2)).
Current § 2255 Motion
26, 2015, the United States Supreme Court decided Johnson
v. United States, 135 S.Ct. 2551 (2015), invalidating
the residual clause of the Armed Career Criminal Act, because
it failed to give proper notice about the potential for
increased sentencing and therefore was unconstitutionally
vague. Johnson, 135 S.Ct. at 2551.
April 18, 2016, the Supreme Court gave Johnson
retroactive effect. Welch v. United States, 136
S.Ct. 1257, 1268 (2016) (“Johnson announced a
substantive rule that has retroactive effect in cases on
26, 2016, Mr. Blackmon, represented by counsel, moved to
vacate, set aside, or correct his sentence. Pet'r's
Mot. at 1. The motion was assigned to this Court. Mr.
Blackmon argued that, under Johnson, an identically
worded residual clause2 in the then applicable Sentencing
Guidelines' career offender definition is also
unconstitutionally vague. Pet'r's Mem. at 4-5.
Without that residual clause, he arguably would no longer
qualify as a career offender and would therefore be entitled
to a resentencing. Id. at 1-2. Because his motion
was successive, Mr. Blackmon asked the Court to stay its
proceedings until the Second Circuit granted his motion for
leave to file a successive § 2255 motion.
Pet'r's Mot. at 1; see also 28 U.S.C. §
2244(3) (“Before a second or successive application
permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for
an order authorizing the district court to consider the
August 10, 2016, the Second Circuit granted Mr. Blackmon
leave to file his successive § 2255 motion, but directed
the District Court to stay proceedings until the Supreme
Court announced its decision in Beckles v. United
States, 137 S.Ct. 886 (2017), which was scheduled for
argument before the Supreme Court during the 2016-17
See Mandate (“Petitioner moves for leave to
file a successive 28 U.S.C. § 2255 motion. He argues
that Johnson v. United States, 135 S.Ct 2551 (2015),
has invalidated a certain provision of the United States
Sentencing Guidelines, entitling him to a sentence reduction.
Upon due consideration, it is hereby ORDERED that the motion
March 6, 2017, the Supreme Court decided Beckles, holding
that the residual clause of the advisory Sentencing
Guidelines was not unconstitutionally vague because, unlike
the mandatory minimum sentences in the ACCA, “the
Guidelines advise sentencing courts on how to exercise their
discretion within the bounds established by Congress [and
t]he court relied on the career-offender Guideline merely for
advice in exercising its discretion to choose a sentence
within those statutory limits.” Beckles, 137
S.Ct. at 895. Therefore, “the advisory Sentencing
Guidelines are not subject to a vagueness challenge under the
Due Process Clause and . . . § 4B1.2(a)'s residual
clause is not void for vagueness.” Id.
August 4, 2017, Mr. Blackmon filed a memorandum of law in
support of his motion, arguing that: (1) his prior
convictions did not qualify as “crimes of violence,
” invalidating the career offender enhancement of his
sentence; and (2) because he was sentenced before
Booker made the Guidelines advisory and not
mandatory, the residual clause was still liable to a
vagueness challenge. Pet'r's Mem. at 10-14.
August 25, 2017, the Government responded to Mr.
Blackmon's motion, arguing that “[t]he mandatory
guidelines are not subject to vagueness challenge under
Beckles.” Am. Resp. at 22. The Government
argued, inter alia, that while the Supreme Court
struck down the ACCA's residual clause, it did not strike
down the Guidelines' residual clause, making Mr.
Blackmon's petition premature to any substantive rule or
“watershed rule of criminal procedure.”
Id. at 16, 21. The Government also argued that
“Blackmon failed to satisfy the requirements on
successive petitions in § 2255(h)(2)” and that he
procedurally defaulted his vagueness challenge by failing to
raise it at sentencing or on direct appeal. Id. at
12, 21. The Government also noted that it was seeking to
obtain copies of the state court judgments of conviction so
as to establish whether Mr. Blackmon was convicted of
manslaughter in the first degree, Conn. Gen. Stat. §
53a-55, or manslaughter in the first degree with a firearm,
Conn. Gen. Stat. § 53a-55a. Id. at 23 n.7
(“Blackmon's criminal records check (a relevant
portion of which is appended hereto as Exhibit 1) would
appear to reflect that he was convicted of manslaughter with
a firearm in violation of 53a-55a . . . . While the Court may
not rely on a rap sheet to establish the crime of conviction
for these purposes, the Government is seeking to obtain the
judgments or mittimus.”) (citing State Police Record
Check, dated Aug. 17, 2017, annexed as Ex. 1 to Am. Resp.).
September 8, 2017, filed a supplemental response to Mr.
Blackmon's motion under seal. Government's
Supplemental Response to Mot., dated Sept. 8, 2017
(“Supp. Resp.”), ECF No. 9. The Government
submitted as exhibits in further support of its opposition to
the petition two judgments mittimus from the Connecticut
Superior Court for Mr. Blackmon's 1992 convictions for
manslaughter in the first degree and assault in the second
degree with a firearm. See Judgment Mittimus, No.
CR6-335376 JD (Conn. Super. Ct. Apr. 16, 1992), annexed to
Supp. Resp., ECF No. 9-1, at 1 (hereafter, the
“Manslaughter Judgment”); Judgment Mittimus, No.
CR6-333362 JD, (Conn. Super. Ct. Apr. 16, 1992), annexed to
Supp. Resp., ECF No. 9-1, at 2 (hereafter, the “Assault
Judgment”). These documents, the Government explained,
were obtained as part of its review of Mr. Blackmon's
file from the Connecticut Department of Corrections. Supp.
Resp. at 2.
September 11, 2017, the Government moved for the judgments
submitted as exhibits on September 8, 2017 to remain under
seal until further order of the Court as they contained
“confidential personal identifying information relating
to the Petitioner.” Government's Sealed Motion to
Seal, dated Sept. 11, 2017, ECF No. 10.
November 2, 2017, Blackmon was released from a halfway house
and began serving his five-year term of supervised release.
See Fed. Bureau of Prisons, Inmate Locator
Service, https://www.bop.gov/inmateloc/ (last visited
Aug. 8, 2019); Am. Resp. at 4 n.1; see also U.S.
Probation Petition for Action Request for Compliance Review
Hearing, No. 92-cr-39-3, filed Nov. 1, 2018, ECF No. 286, at
“Date Supervision Commenced.”
January 23, 2018, the Court granted the Government's
motion to seal. Order, dated Jan. 23, 2018, ECF No.
STANDARD OF REVIEW
federal prisoner may challenge his or her sentence under 28
U.S.C. § 2255 “where the sentence (1) was imposed
in violation of the U.S. Constitution or the laws of the
United States; or (2) was entered by a court without
jurisdiction to impose the sentence; or (3) exceeded the
maximum detention authorized by law; or (4) is otherwise
subject to collateral attack.” Adams v. United
States, 372 F.3d 132, 134 (2d Cir. 2004).
§ 2255 proceedings, petitioners bear the burden of
proving, by a preponderance of the evidence, that they are
entitled to relief. See Triana v. United States, 205
F.3d 36, 40 (2d Cir. 2000) (citing Harned v.
Henderson, 588 F.2d 12, 22 (2d Cir. 1978) (“It is,
of course, well settled that in federal habeas corpus
proceedings the burden of proving a constitutional claim lies
with the petitioner and that the nature of that burden is the
customary civil one of a preponderance of the
evidence.”) (collecting cases)).
on a § 2255 motion should be “narrowly
limited.” Graziano v. United States, 83 F.3d
587, 590 (2d Cir. 1996) (citing United States v.
Bokun, 73 F.3d 8, 12 (2d Cir. 1995)). “Because
collateral challenges are in tension with society's
strong interest in the finality of criminal convictions, the
courts have established rules that make it more difficult for
a defendant to upset a conviction by collateral, as opposed
to direct, attack.” Yick Man Mui v. United
States, 614 F.3d 50, 53 (2d Cir. 2010) (internal
quotation marks omitted). To prevail on a collateral attack,
a defendant must show “constitutional error, a lack of
jurisdiction in the sentencing court, or an error of law or
fact that constitutes a fundamental defect which inherently
results in a complete miscarriage of justice.”
Cuoco v. United States, 208 F.3d 27, 30 (2d Cir.
2000) (quoting Bokun, 73 F.3d at 12).
“have an independent obligation to determine whether
subject-matter jurisdiction exists, even in the absence of a
challenge from any party.” Arbaugh v. Y & H
Corp., 546 U.S. 500, 501 (2006); see also Oneida
Indian Nation of Wis. v. State of N.Y., 732 F.2d 259,
261 (2d Cir. 1984) (a court has “jurisdiction to
consider its own jurisdiction”).
is a basic principle of Article III that a justiciable case
or controversy must remain extant at all stages of review,
not merely at the time the complaint is filed.”
United States v. Juvenile Male,564 U.S. 932, 936
(2011) (citations and internal quotation marks omitted).
“Throughout the litigation, the party seeking relief
must have suffered, or be threatened with, an actual injury
traceable to the defendant ...