United States District Court, W.D. Arkansas, Fayetteville Division
OPINION & ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
before the Court is the Motion to Appoint Counsel (Doc. 43)
filed by Petitioner Nicholas Gray on May 16, 2017. For the
reasons discussed herein, that Motion is DENIED WITHOUT
December 7, 2010, Gray pleaded guilty to one count of
distributing crack cocaine in violation of 21 U.S.C. §
841(a)(1). This Court then sentenced Gray to a term of
imprisonment of 140 months on March 11, 2011. In so doing,
the Court applied the guideline enhancement found at U.S.S.G.
§ 4B1.1. See Doc. 23, p. 7. The § 4B1.1 enhancement
applies to "career offenders"-which includes
defendants convicted of a felony controlled substance offense
with at least two prior felony convictions for crimes of
violence. See U.S.S.G. § 4B1.1 (2010).
Application of the § 4B1.1 enhancement increased
Gray's total offense level from a 21 to a 29.
See Doc. 23, pp. 6-7.
filed a Motion to Vacate pursuant to 28 U.S.C. § 2255 on
June 16, 2016. (Doc. 37). The Motion, filed while Gray was
represented by the Federal Public Defender's Office,
argues that his sentence was unconstitutional in light of
Johnson v. United States, 135 S.Ct. 2551 (2015), and
its progeny. Johnson held that the so-called
"residual clause" of the Armed Career Criminal Act
("ACCA"), 18 U.S.C. § 924(e) was
unconstitutionally vague. As § 4B1.2, defining
"crime of violence" for purposes of the §
4B1.1 enhancement, contained language identical to the
ACCA's residual clause, it was assumed in the Eighth
Circuit that Johnson must also render the coordinate
provision of § 4B1.2 unconstitutional as well.
Compare 18 U.S.C. § 924(e)(2)(B)(ii) (defining
"violent felony" to mean, in relevant part, an
offense that "involves conduct that presents a serious
potential risk of physical injury to another"),
with U.S.S.G. § 4B1.2(a)(2) (2010) (defining
"crime of violence" to mean, in relevant part, an
offense that "involves conduct that presents a serious
potential risk of physical injury to another"). See
United States v. Martinez, 821 F.3d 984, 988 (8th Cir.
2016) (assuming without deciding that Johnson
applies to the residual clause of the guidelines).
during the pendency of Gray's Motion to Vacate, the
Supreme Court granted a petition for writ of certiorari to
address the question of whether Johnson applies to
the Sentencing Guidelines. See Beckles v. United
States, 136 S.Ct. 2510 (2016) (granting certiorari). The
Court accordingly stayed Gray's Motion to Vacate pending
the outcome of Beckles. (Doc. 40).
Supreme Court then decided Beckles on March 6, 2017.
137 S.Ct. 886 (2017). In an opinion by Justice Thomas, the
Court held that the Sentencing Guidelines were not subject to
void for vagueness challenges under the Fifth Amendment Due
Process Clause, meaning that Johnson does not apply
to the Guidelines. Id. at 897. Presumably
recognizing that Beckles rendered his Motion to
Vacate futile, as the Motion's only contention involved
the exact void-for-vagueness argument foreclosed by that
case, Gray filed a Notice of Dismissal on April 26, 2017,
voluntarily withdrawing his Motion. (Doc. 41). The
Clerk's Office dismissed Gray's Motion to Vacate
without prejudice a day later. (Doc. 42).
filed the instant Motion to Appoint Counsel on May 16, 2017.
The Motion expresses Gray's desire to have counsel
appointed in order to pursue post-conviction relief based on
Mathis v. United States, 136 S.Ct. 2243 (2016). The
Court has discretion to appoint counsel in cases brought
pursuant to 28 U.S.C. § 2255, by a financially eligible
person, when "the interests of justice so require."
See 28 U.S.C. § 2255(g); 18 U.S.C. §
3OO6A(a)(2)(B); Pennsylvania v. Finley, 481 U.S.
551, 555 (1987) (holding that the Constitution confers no
right to appointed counsel in post-conviction proceedings).
"In exercising its discretion, a court should first
determine whether the § 2255 movant has presented a
non-frivolous claim." United States v. Arcoren,
633 F.Supp.2d 752, 756 (D.S.D. 2009) (citing Abdullah v.
Norris, 18 F.3d 571, 573 (8th Cir.), cert,
denied, 513 U.S. 857 (1994)). "If the movant has
presented only claims that are frivolous or clearly without
merit, the court should dismiss the case on the merits
without appointing counsel." Id. at 757.
appointment of counsel would be inappropriate in this case,
at this time, for two reasons. First, there is no motion for
relief under 28 U.S.C. § 2255 currently pending in this
case. The Clerk's Office dismissed Gray's original
Motion to Vacate without prejudice on April 27, 2017, and he
has yet to file any other motion. Thus, it would be premature
to determine whether Gray has presented a non-frivolous
claim: Gray has not presented any claim thus far. Second and
relatedly, Gray's letter to the Court requesting the
appointment of counsel indicates that he plans to assert a
claim pursuant to Mathis, 136 S.Ct. at 2243. To the
extent that Gray later files a 28 U.S.C. § 2255 motion
contending that his sentence must be vacated pursuant to
Mathis, that argument would almost definitely lack
merit-though prejudging the issue for purposes other than the
question of whether to appoint counsel would be
involved the question of how to determine whether a state
conviction counts as a predicate violent felony offense under
the enumerated felonies section of the ACCA. See 18
U.S.C. § 924(e)(2)(B)(ii) (listing "burglary,
arson, or extortion" as violent felonies); 136 S.Ct. at
2247-48. The inquiry into whether a particular state
conviction-say, for burglary-falls within the meaning of
"burglary" for purposes of the ACCA is particularly
important in light of Johnson's invalidation of
that statute's residual clause. Before Johnson,
if a state conviction did not fit within the ACCA's
"generic" definition of an enumerated offense, it
could still be considered a "violent felony" under
the ACCA's residual clause-it could still "otherwise
involve conduct that presents a serious potential risk of
physical injury to another." 18 U.S.C. §
924(e)(2)(B)(ii). After Johnson, however, such an
offense would not qualify as a violent felony under the ACCA
at all, potentially relieving the defendant of the ACCA's
fifteen-year mandatory minimum sentence for defendants with
three prior violent felony (or serious drug) convictions. 18
U.S.C. § 924(e)(1).
noted above, Johnson does not apply to the
Sentencing Guidelines. Thus, even if neither Gray's
burglary nor manslaughter convictions could be considered
"crimes of violence" pursuant to the enumerated
offenses found at U.S.S.G. § 4B1.2(a)(2), they would
both still likely fall under that provision's residual
clause-they would still "otherwise involve conduct
that presents a serious potential risk of physical injury to
another. U.S.S.G. § 481 .2(a)(2) (2010). Thus, at least
for purposes of determining whether to appoint counsel to
Gray at this stage in the proceedings, the claim he seeks to
assert pursuant to his letter to the Court appears to be
without merit. 
reasons stated herein, Nicholas Gray's Motion to Appoint