United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING MOTION PURSUANT TO 28 U.S.C. §
2255 DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING AN
APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO
APPEAL IN FORMA PAUPERIS
D. TODD UNITED STATES DISTRICT JUDGE
the Court is a motion pursuant to 28 U.S.C. § 2255 filed
by the Movant, Robert Derek Bell-El. For the reasons stated
below, the Court DENIES Bell-El's § 2255 motion.
February 21, 2006, a federal grand jury returned a
superseding indictment against Bell-El, charging him with
three counts of bank robbery in violation of 18 U.S.C. §
2113(a). (No. 05-10077, Crim. ECF No. 15.) Trial began on
October 25, 2006, and on October 27, 2006, the jury returned
a verdict of guilty on all three counts. (Id., Crim.
ECF Nos. 37, 38, 39, 40 & 41.) At a hearing on January
25, 2007, the Court found that Bell-El qualified as a career
offender under U.S.S.G. §4B1.1. He was sentenced to
concurrent prison terms of 240 months on each of counts one
and two and a consecutive 22-month term of imprisonment on
count three, for an effective sentence of 262 months.
(Id., Crim. ECF No. 50; see also id.,
Sent'g Tr., Crim. ECF No. 59 at PageID 313-18.) The Court
also imposed a three-year period of supervised release.
(Id.) Judgment was entered on January 29, 2007
(id., Crim. ECF No. 51), and an amended judgment was
entered on February 6, 2007 (id., Crim. ECF No. 53).
On appeal, the Sixth Circuit affirmed. United States v.
Bell, 259 F. App'x 733 (6th Cir. 2008).
Pursuant to 28 U.S.C. § 2255(a),
[a] prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
prisoner seeking relief under 28 U.S.C. § 2255 must
allege either (1) an error of constitutional magnitude; (2) a
sentence imposed outside the statutory limits; or (3) an
error of fact or law that was so fundamental as to render the
entire proceeding invalid.” Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (internal
quotation marks omitted).
§ 2255 motion is filed, it is reviewed by the Court and,
“[i]f it plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that the moving
party is not entitled to relief, the judge must dismiss the
motion.” Rule 4(b), Rules Governing § 2255
Proceedings (“§ 2255 Rules”). “If the
motion is not dismissed, the judge must order the United
States attorney to file an answer, motion, or other response
within a fixed time, or to take other action the judge may
sole issue Bell-El raises in the § 2255 motion is
whether his sentence is constitutionally invalid under
Johnson v. United States, 135 S.Ct. 2551 (2015). The
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e),
requires a fifteen-year sentence for a felon who is convicted
of unlawfully possessing a firearm in violation of 18 U.S.C.
§ 922(g) and who has three prior convictions “for
a violent felony or a serious drug offense, or both.”
Id., § 924(e)(1). The ACCA defines
“violent felony” as “any crime punishable
by imprisonment for a term exceeding one year” that (1)
“has as an element the use, attempted use, or
threatened use of physical force against the person of
another, ” (2) “is burglary, arson, or extortion,
involves use of explosives, ” or (3) “otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” Id., §
924(e)(2)(B)(i)-(ii). The last part of that definition is
commonly referred to as the “residual clause.” In
Johnson the Supreme Court held the ACCA's
residual clause was unconstitutionally vague and that
increasing a defendant's sentence under the clause was,
therefore, a denial of due process. 135 S.Ct. at 2563. The
Supreme Court later held the decision in Johnson was
retroactive and thus applicable to cases on collateral
review. Welch v. United States, 136 S.Ct. 1257
was sentenced not under the ACCA but pursuant to the career
offender provision of the U.S. Sentencing Guidelines,
U.S.S.G. § 4B1.1. Under that provision, a defendant who
is convicted of “a felony that is either a crime of
violence or a controlled substance offense” qualifies
for an increased sentence if he “has at least two prior
felony convictions of either a crime of violence or a
controlled substance offense.” § 4B1.1(a). At the
time of Bell-El's sentencing, the definition of
“violent felony” in the career offender guideline
contained a residual clause that was identical to the
residual clause in the ACCA. § 4B1.2(a)(2)
(2006). Bell-El thus contends that his sentence is
invalid because the residual clause in the career offender
guideline is also unconstitutionally vague.
argument is foreclosed by the decision in Beckles v.
United States, 137 S.Ct. 886, 892-95 (2017), in which
the Supreme Court held “that the advisory Sentencing
Guidelines are not subject to a vagueness challenge under the
Due Process Clause and that § 4B1.2(a)'s residual
clause is not void for vagueness.” 137 S.Ct. at 895.
Bell-El was sentenced under the advisory guidelines, after
the decision in Booker v. United States, 543 U.S.
220 (2005). Therefore, the Court's prior determination
that he had the requisite number of predicate offenses under
§ 4B1.2(a) was not affected by the decision in
§ 2255 motion, together with the files and record in
this case, “conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b);
see also Rule 4(b), § 2255 Rules. A response
from the United States is not necessary. Accordingly, the
§ 2255 motion is DENIED.
U.S.C. § 2253(a) requires the district court to evaluate
the appealability of its decision denying a § 2255
motion and to issue a certificate of appealability (COA)
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); see also Fed. R. App. P. 22(b).
No § 2255 movant may appeal without this certificate.
may issue only if the petitioner has made a substantial
showing of the denial of a constitutional right, and the COA
must indicate the specific issue(s) which satisfy the
required showing. 28 U.S.C. §§ 2253(c)(2) &
(3). A “substantial showing” is made when the
movant demonstrates that “reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 336 (2003) (internal quotation marks and citation
omitted); see also Henley v. Bell, 308 F. App'x
989, 990 (6th Cir. 2009) (per curiam) (same). A COA does not
require a showing that the appeal will succeed.
Miller-El, 537 U.S. at 337; Caldwell v.
Lewis, 414 F. App'x 809, 814-15 (6th Cir. 2011)
(same). Courts should not issue a COA as a matter of course.
Bradley v. Birkett, 156 F. App'x 771, 773 (6th
issues raised in this § 2255 motion are without merit
for the reasons previously stated. Because any appeal by
Bell-El on the issue raised in his § 2255 motion does
not deserve ...