United States District Court, W.D. Arkansas, El Dorado Division
F. Barnes, United States District Judge
the Court is a Report and Recommendation entered by the
Honorable Barry A. Bryant, United States Magistrate Judge for
the Western District of Arkansas, on September 14, 2017. ECF
No. 183. Petitioner has filed objections. ECF No. 185. The
Court finds this matter ripe for consideration.
December 13, 2013, a Judgment was entered against Petitioner,
sentencing him to a total of 135 months' imprisonment
with credit for time served in federal custody. ECF No. 141.
Petitioner did not file a direct appeal. Petitioner filed the
instant Motion to Vacate, Set Aside, or Correct Sentence
Pursuant to 28 U.S.C. § 2255 on June 9, 2016. ECF No.
166. Petitioner subsequently filed a brief in support of his
motion. ECF No. 167.
these documents Petitioner argues, in relevant part, that 18
U.S.C. § 924(c)(3)(B) is unconstitutional in light of
Johnson v. United States, 135 S.Ct. 2551 (2015).
(ECF No. 166). On August 29, 2016, the Government filed a
response, arguing that Petitioner is not entitled to section
2255 relief. ECF No. 175. On September 14, 2017, Judge Bryant
issued the present Report and Recommendation. ECF No. 183.
Petitioner filed objections on September 28, 2017. ECF No.
present Report and Recommendation, Judge Bryant recommends
that Petitioner's Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 166) be
denied and dismissed with prejudice. Judge Bryant found that
“the United States Court of Appeals for the Eighth
Circuit directly addressed this issue and ruled that the
holding in Johnson did not invalidate the language
of 18 U.S.C. § 924(c).” ECF No. 183, p. 2 (citing
United States v. Prickett, 839 F.3d. 697 (8th Cir.
2016)). Likewise, Judge Bryant further recommends that any
request for a Certificate of Appealability should be denied.
Petitioner makes two arguments in his objections. The Court
will address each in turn.
Denial of Petitioner's Motion
objections, Petitioner concedes that the Court is bound by
the Eighth Circuit's ruling in Prickett, but
argues that Prickett “was incorrectly decided
and that § 924(c)(3)(B) is void for vagueness.”
ECF No. 185, p. 3. Accordingly, he states that “he
objects to the R&R's recommendation that his motion
be denied in order to preserve his argument for possible
appeal to the United States Supreme Court.” ECF No.
185, p. 3. Upon consideration, the Court finds that Judge
Bryant was correct in his finding that Prickett
forecloses Petitioner's argument that § 924(c)(3)(B)
is void for vagueness. Prickett, 839 F.3d. at 700
(“We therefore conclude that Johnson does not
render § 924(c)(3)(B) unconstitutionally vague.”).
Accordingly, upon de novo review, the Court finds
that Judge Bryant's Report and Recommendation should be
adopted as to this issue and Petitioner's motion should
denied and dismissed with prejudice.
Certificate of Appealability
Petitioner also objects to Judge Bryant's recommendation
that no Certificate of Appealability be issued, arguing
“that he has made a substantial showing of the denial
of a constitutional right, as [a] split among the circuits
clearly demonstrates that the issue of the constitutionality
of § 924(c)(3)(B) is debatable among reasonable
jurists.” ECF No. 185, p. 4.
issuance of a Certificate of Appealability is only
appropriate in a section 2255 proceeding when a petitioner
makes “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). The
Supreme Court has stated that “[w]here a district court
has rejected the constitutional claims on the merits, the
showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484
objections, Petitioner cites a Seventh Circuit opinion as
well as numerous district court opinions which find that 18
U.S.C. § 924(c)(3)(B) is unconstitutionally vague in
light of Johnson. Petitioner also cites opinions
from the Third, Sixth, Seventh, Ninth, and Tenth Circuits
that find 18 U.S.C. § 16(b)-a statute with almost
identical language to 18 U.S.C. § 924(c)(3)(B)- void for
vagueness in light of Johnson. The Court further
recognizes that after Petitioner filed his objections, the
Supreme Court issued its opinion in Sessions v.
Dimaya, affirming the Ninth Circuit's holding that
18 U.S.C. § 16(b), as incorporated in the Immigration
and Nationality Act, is unconstitutionally vague. 138 S.Ct.
1204 (2018). Taking all of this into account, the Court is
satisfied that Petitioner has ...