United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane United States District Judge.
Michael Dean Galloway is currently serving a 188-month
sentence based in part on § 2K2.1(a) of the United
States Sentencing Guidelines
(“Guidelines”). On June 17, 2016, he filed a
motion to vacate or correct his sentence under 28 U.S.C.
§ 2255, arguing that the principles set forth in
Johnson v. United States, 135 S.Ct. 2551 (2015),
rendered void for vagueness the advisory Guidelines provision
used to calculate his recommended sentencing range. When that
argument was subsequently foreclosed by the Supreme
Court's holding in Beckles v. United States, 137
S.Ct. 886 (2017), Mr. Galloway amended his pleading to argue
that, although not void for vagueness, the Guidelines
provision remains unworkable, leaving no lawful basis for his
recommended sentencing range and rendering his actual
sentence both arbitrary and capricious, in violation of the
Due Process Clause, and disproportionate, in violation of the
Eighth Amendment. The Government now moves to dismiss.
Because Mr. Galloway's motion is untimely and does not
rely on the new rule of constitutional law announced in
Johnson, it is an impermissible second petition and
must be DISMISSED.
2005, Mr. Galloway pleaded guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g)(1) and possessing an unregistered firearm in violation
of 26 U.S.C. §§ 5845(a), 5845(d), 5861(d), and
5871. Judgment 1, ECF No. 39. The district court found that,
under the Armed Career Criminal Act (“ACCA”), Mr.
Galloway had four prior convictions for “violent
felonies” and he was sentenced to a 235-month prison
term. Findings of Fact Order 2-3, ECF No. 40. On direct
appeal, however, the Ninth Circuit vacated Mr. Galloway's
ACCA sentence, holding that two of his prior convictions,
both for Oregon burglary in the second degree, were not
categorical violent felonies. United States v.
Galloway, 235 Fed.Appx. 571 (9th Cir. 2007) (citing
United States v. Grisel, 488 F.3d 844, 851 (9th Cir.
remand for resentencing, the district court found that Mr.
Galloway qualified for an enhanced sentence under §
2K2.1(a) of the advisory Guidelines based in part on two
prior convictions for attempted murder and burglary in the
first degree-both “crimes of violence” within the
meaning of § 4B1.2. Presentence Report
(“PSR”) ¶ 19; Statement of Reasons 1-2, ECF
No. 72 (adopting PSR in full). With the enhancement, Mr.
Galloway's Guidelines range was 155-188 months. PSR
¶¶ 20-26. After considering the recommended range
and the factors listed in 18 U.S.C. § 3553(a), the court
imposed a 188-month sentence. Judgment 2, ECF. No. 70. Judge
Hogan added that, “[f]or whatever benefit it is to the
court of appeals . . . I take records more seriously when
someone has actually pulled a trigger, and that happened here
in this situation, and the sentence is based in part on
that.” Tr. 16:18-23, ECF No. 73.
17, 2016, Mr. Galloway filed the instant motion to vacate or
correct his sentence pursuant to 28 U.S.C. § 2255. This
was his second such motion and therefore required
authorization from the Ninth Circuit, which he received.
Galloway v. United States, No. 16- 71939 (9th Cir.
Sept. 16, 2016). Mr. Galloway initially argued that the
principles set forth in Johnson v. United States,
135 S.Ct. 2551 (2015), rendered void for vagueness the
Guidelines provision on which his recommended sentencing
range was based. When that argument was subsequently
foreclosed by the Supreme Court's holding in Beckles
v. United States, 137 S.Ct. 886 (2017), Mr. Galloway
amended his pleading to argue that, although not void for
vagueness, the Guidelines language remains unworkable,
leaving no lawful basis for his recommended sentencing range
and rendering his actual sentence both arbitrary and
capricious, in violation of the Due Process Clause, and
disproportionate, in violation of the Eighth Amendment.
Government now moves to dismiss Mr. Galloway's motion on
five grounds. First, it argues that the motion fails to
satisfy the requirements for a second or successive petition
under 28 U.S.C. § 2255(h)(2) because it does not rely on
the new rule of constitutional law announced in
Johnson. Second, the Government argues that, under
28 U.S.C. § 2255(f), Mr. Galloway's amended motion
is untimely and cannot relate back to the date on which the
original motion was filed. Third, the Government argues that
§ 2255 only provides prisoners with relief from
constitutional sentencing errors and, because miscalculation
of a Guidelines range is non-constitutional error, Mr.
Galloway's claims are not cognizable. Fourth, the
Government argues that, even if Mr. Galloway's motion is
timely and a permissible second petition, his claims are
procedurally defaulted and therefore cannot be raised on
collateral review. Finally, moving on to the merits, the
Government argues that, because Mr. Galloway's sentence
is based on all of the factors listed in18 U.S.C. §
3553(a), not just the advisory Guidelines, it is
Court need not reach the merits of Mr. Galloway's claims
because his motion is untimely and an impermissible second
petition. The timeliness and permissibility of all §
2255 motions, including second petitions, is governed by the
Antiterrorism and Effective Death Penalty Act
(“AEDPA”). Under AEDPA, a second § 2255
motion must be dismissed, without reaching the merits, unless
it “relies on a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.” 28 U.S.C.
§ 2244(b)(4). Here, the parties agree, as they must,
that Johnson announced a new rule of constitutional
law and that this new rule is retroactively applicable to
cases on collateral review. See Welch v. United
States, 136 S.Ct. 1257, 1265 (2016). They disagree,
however, as to the scope of that new rule and, in turn,
whether Mr. Galloway's motion relies on it.
Court agrees with the Government that Mr. Galloway's
motion does not rely on the new rule from Johnson. A
motion relies on the same new rule announced in a prior
Supreme Court decision if the substance of that decision
requires that the district court grant a
prisoner's motion on the merits. See Ezell v. United
States, 778 F.3d 762, 766 (9th Cir. 2015). Stated
differently, the merits of a prisoner's motion must
require no more than a “garden variety”
application of the relevant case's governing principle.
Chaidez v. United States, 568 U.S. 342, 348 (2013).
The broadest possible formulation of the new rule announced
in Johnson is that, when used in sentencing regimes
which fix sentences, the residual clause is
unconstitutionally vague. Although the opinion broadly
describes the residual clause as a “black hole of
confusion, ” that disapproving language is
constitutionally tethered only to the
void-for-vagueness doctrine. Johnson, 135 S.Ct. at
2652. The Court makes no mention of the advisory Guidelines,
Eighth Amendment, or how either would interact with the Fifth
Amendment's general prohibition on arbitrary punishment.
As Judge Simon recently noted, Johnson's
critique of the residual clause language “was not
itself a new rule of constitutional law which created a due
process or Eighth Amendment right independent of the
void-for-vagueness rule.” United States v.
Slattery, No. 3:07-cr-00362-SI, 2017 WL 4581790, at *4
(D. Or. Oct. 13, 2017).
Galloway's characterization of the new rule announced in
Johnson-“that the residual clause provides no
lawful framework for fair sentencing”-stretches that
decision beyond recognition. As noted above, the Supreme
Court's analysis was limited to vagueness challenges in
the context of a mandatory sentencing regime; it did not
address the constitutionality of a sentence informed only in
part by the defective language of the residual clause, and it
certainly did not go so far as to require that any sentence
in which the residual clause played a role must be unlawful.
Indeed, the underlying logic of Beckles provides
that, because the Guidelines are merely advisory,
“previous convictions are neither clearly lawful nor
unlawful bases” for an enhanced sentence.
Slattery, 2017 WL 4581790, at *3. Instead, a
district court is “free to make an upward departure
from the range recommended by the Guidelines, even where
previous convictions unambiguously do not qualify as
predicate offenses.” Id. There is, as such,
simply too great a distance between the principle governing
Johnson and the result Mr. Galloway seeks for this
Court to find that his motion relies on the new rule from
even if Mr. Galloway's motion satisfied the gatekeeping
requirements of 28 U.S.C. § 2255(h)(2), it would be time
bared. Under AEDPA, “all motions” pursuant to
§ 2255, including second or successive petitions, must
be filed within one year from the date on which a conviction
becomes final, unless an exception applies. Dodd v.
United States, 545 U.S. 353, 359 (2005); 28 U.S.C.
§ 2255(f). Mr. Galloway seeks to rely on the exception
at § 2255(f)(3) to render his motion timely. Under
§ 2255(f)(3), a motion is timely if (1) it
“assert[s] . . . [a] right . . . newly recognized by
the Supreme Court, ” 28 U.S.C. § 2255(f)(3), (2)
it is filed within one year from the “date on which the
right asserted was initially recognized by the Supreme Court,
” id. § 2255(f)(3), and (3) the Supreme
Court or controlling Court of Appeals has declared the right
retroactively applicable on collateral review, Dodd,
545 U.S. at 357-59. As this Court has held, however, the
“new right” requirement is narrower than the
“new rule” requirement discussed above.
United States v. Colasanti, 282 F.Supp.3d 1213,
1220-22 (D. Or. 2017). “The right recognized by
Johnson is limited to its specific holding: that the
ACCA's residual clause is unconstitutionally
vague.” Id. at 1218. By asking this Court to
invalidate a sentence based not on the ACCA, and by reference
to constitutional theories never discussed in
Johnson, Mr. Galloway asserts a right not recognized
in Johnson. His motion is therefore
foregoing reasons, Mr. Galloway's motion to vacate or
correct his sentence is DENIED. The Government's motion
to dismiss is GRANTED. Since reasonable jurists could not
debate the Court's resolution ...