USA v. Young

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
UNITED STATES OF AMERICA RESPONDENT
v. Criminal No. 6:10-cr-60034
Civil No. 6:16-cv-06066
TRACY YOUNG MOVANT
REPORT AND RECOMMEDATION
Before the Court is the Motion to Correct Sentence under 28 U.S.C. § 2255 filed herein on
behalf of TRACY YOUNG (hereinafter "Young"). ECF No. 39. The Motion to Correct Sentence was
stayed pending the decision of the United States Supreme Court in Beckles v. United States. The
Parities were directed to brief the effect of Beckles on the pending motion. ECF No. 42. Beckles was
decided by the Supreme Court on March 6, 2017. See, Beckles, 137 S. Ct. 886 (2017). The case has
been referred to the undersigned for the purpose of making a report and recommendation regarding
disposition.
1. Procedural History:
On December 5, 2011, Young was sentenced to a term of 180 months imprisonment following
his conviction for possession with intent to distribute methamphetamine and possession of a firearm
by a prohibited person. He filed a motion pursuant to § 2255 on November 29, 2012. ECF No. 33.
This Motion was denied by the Court on March 26, 2013. ECF No. 38. Other specific procedural facts
are set out in the Report and Recommendation filed herein on February 28, 2013 (ECF No. 37) and will
not be repeated here except as necessary for this Order.
2. Discussion:
As noted above, the instant Motion was stayed pending a decision by the Supreme Court in
Beckles. Despite being ordered to brief the effect of Beckles, Young has failed to file a brief regarding
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the effect of the Beckles decision on his motion. The Government, filed a brief asserting the Beckles
decision precluded relief for Young, as his Motion was entirely predicated on the issue raised in that
case. ECF No. 43. The Government also asserts the Motion to Vacate is successive and Movant has
not obtained permission from the United States Court of Appeals for the Eighth Circuit to file such a
successive petition..
a. Beckles: The only issue Young raises in his current § 2255 motion is the applicability of
Johnson v. United States, 135 S.Ct. 2551 (2015) to his sentence. Johnson invalidated as
unconstitutionally vague the residual clause in the definition of a “violent felony” in the Armed Career
Criminal Act (ACCA). Young argued Johnson should be extended to the application of the United
States Sentencing Guidelines. Beckles directly addressed this issue and held "the Guidelines are not
amenable to a vagueness challenge." Beckles, 137 S. Ct. at 894. Accordingly, Young's motion should
be denied on its merits as the Supreme Court Decision in Johnson does not apply to Young' sentencing.
b. Successive Motion: Further, Young previously filed a Motion to Vacate pursuant to § 2255.
ECF No. 33. Before this Court may consider a second or successive § 2255 motion, Young must first
obtain authorization from the appropriate court of appeals, in this case the United States Court of
Appeals for the Eighth Circuit. See 28 U.S.C. § 2255, see also Vancleave v. Norris, 150 F.3d 926, 927
(8th Cir. 1998)(these restrictions are not an unconstitutional suspension of the writ of habeas corpus);
Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996)(only the court of appeals may authorize
commencement of a second or successive petition); Wainwright v. Norris, 958 F.Supp. 426, 431
(E.D.Ark. 1996)(citing Nunez). Young has failed to obtain this authorization, and his Motion should
be denied. See Boykin v. United States, 242 F.3d 373 (Table) (8th Cir. 2000) (the district court lacked
the power and authority to entertain the defendant’s second or successive § 2255 motion and the Eighth
Circuit Court of Appeals remanded the case with directions to dismiss the motion for lack of
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jurisdiction). Accordingly, the instant Motion should be dismissed with prejudice for lack of
jurisdiction.
3. Evidentiary Hearing:
Based on the record in this case, I also conclude an evidentiary hearing is not required in this
matter. Young is clearly not entitled to the relief he seeks.1 Further, I find Young has not made a
substantial showing of the denial of a constitutional right, and any request for a certificate of
appealability should be denied as well.
4. Recommendation:
Accordingly, based on the foregoing, it is recommended the instant motion be DENIED and
dismissed with prejudice. Any request for a certificate of appealability should be DENIED.
The Parties have fourteen (14) days from receipt of this report and recommendation in
which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. The Parties are reminded
that objections must be both timely and specific to trigger de novo review by the district court.
DATED this 20th day of June 2017.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
1 See Buster v. United States, 447 F.3d 1130, 1132 (8th Cir. 2006)(holding that a § 2255 motion can be
dismissed without a hearing if (1) the petitioner's allegations, accepted as true, would not entitle the petitioner to
relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently
incredible, or conclusions rather than statements of fact).
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