United States District Court, W.D. Arkansas, El Dorado Division
F. Barnes, United States District Judge.
the Court is the Report and Recommendation filed July 29,
2016, by the Honorable James. R. Marschewski, United States
Magistrate Judge for the Western District of Arkansas. (ECF
No. 39). Judge Marschewski recommends that the Court deny
Petitioner Christopher Demarkus Nard's Motion Vacate, Set
Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255.
(ECF No. 37). Petitioner has filed objections. (ECF No. 42).
The Court finds the matter ripe for consideration.
October 30, 2013, Petitioner was named in a one-count
Indictment filed in the Western District of Arkansas, El
Dorado Division. The Indictment charged Petitioner with
knowingly possessing a firearm after having been previously
convicted of a felony, in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2). On August 15, 2014, Petitioner
entered a plea of guilty pursuant to a plea agreement. On
March 3, 2015, the Court sentenced Defendant to seventy-five
months' imprisonment, with credit for time served; three
years' supervised release; and a $100 special assessment.
Petitioner did not appeal the judgment.
6, 2016, Petitioner filed a motion to vacate pursuant to 28
U.S.C. § 2255. (ECF No. 37). Petitioner contends that
his sentence should be vacated because it was improperly
enhanced under the United States Sentencing Guidelines'
(“USSG”) “residual clause” because of
a “prior crime of Possession of a Firearm by a
convicted Felon, in Bowie County, Texas.” (ECF No. 38).
Specifically, Petitioner argues that this enhancement
violates Johnson v. United States, 135 S.Ct. 2551
(2015), which was made retroactive after his sentencing.
Petitioner also argues that his sentence should be vacated
because he received ineffective assistance of counsel.
Specifically, he contends that his counsel: (1) failed to
give him a copy of his presentence report; (2) told him that
he would receive a lesser sentence if he pled guilty; (3) did
not accurately express to him that he would be subjected to a
four-level enhancement of his Base Offense Level; and (4)
coerced him into signing a plea agreement by telling him that
if he refused to accept the plea agreement, the government
would file a Superseded Indictment against him.
29, 2016, Judge Marschewski issued the instant Report and
Recommendation. Judge Marschewski recommends that the Court
deny Petitioner's motion to vacate and refuse to issue a
certificate of appealability. Specifically, Judge Marschewki
finds that Petitioner's motion to vacate is time-barred,
as it was filed more than a year after his judgment of
conviction became final, and that Petitioner has not
demonstrated that equitable tolling applies to extend the
time to file the motion. Judge Marschewski also finds that,
assuming arguendo that the motion is timely,
Petitioner's claims are meritless. Judge Marschewski
finds that Petitioner's sentence was not illegally
calculated because Johnson does not apply to this
case because Petitioner was not sentenced under the Armed
Career Criminal Act's residual clause. Similarly, Judge
Marschewski finds that Petitioner was not sentenced under the
USSG's career offender provision, 4B1.1. Judge
Marschewski also finds that Petitioner's
ineffective-assistance-of-counsel claims fail because he
failed to demonstrate that he received deficient performance
from his counsel that caused him prejudice. Accordingly,
Judge Marschewski recommends that the Court deny the motion
to vacate and that no certificate of appealability should
issue because Petitioner has not made a substantial showing
of the denial of a constitutional right.
October 24, 2016, Petitioner filed objections to the Report
and Recommendation. Pursuant to 28 U.S.C. § 646(b)(1),
the Court will conduct a de novo review of all
issues related to Petitioner's specific objections.
objects to Judge Marschewski's findings that: (1)
Petitioner's motion to vacate is time-barred; (2) his
claim that his sentence was illegally enhanced in light of
Johnson fails; and (3) his
ineffective-assistance-of-counsel claims fail. The Court will
first address Petitioner's objections regarding
timeliness and, if necessary, the Court will then take up
Petitioner's remaining objections.
objects to Judge Marschewski's finding that his motion is
time-barred. Petitioner states that Johnson v. United
States issued a new substantive rule of constitutional
law that was made retroactive by Welch v. United
States, 136 S.Ct. 1257 (2016). Petitioner argues that
both Johnson and Welch deal with the
definition of “violent felony” and/or
“crime of violence, ” and as such, these
decisions were not available to him at the time of his
sentencing. Therefore, Petitioner argues that his motion is
timely because it was filed within one year of the date that
the right asserted was initially recognized by the Supreme
Marschewski's Report and Recommendation addressed this
argument, analyzing the the applicability of Johnson
and Welch to the case at bar and finding that
neither applied. Johnson and Welch dealt
with whether the Armed Career Criminal Act's
“residual clause, ” found at 18 U.S.C. §
924(e)(2)(B)(ii), was unconstitutionally vague, in violation
of due-process requirements. Petitioner's sentence was
not calculated under 18 U.S.C. § 924(e)(2)(B)(ii).
Therefore, Judge Marschewski found that neither
Johnson nor Welch apply to Petitioner, and
as such, the one-year statute of limitations for section 2255
motions began to run on March 17, 2015, the date the judgment
of conviction became final. Judge Marschewski found further
that Petitioner's motion, filed on July 6, 2016, fell
outside the one-year statute of limitations and, thus, the
motion is time-barred unless he could establish that
equitable tolling applies, which Judge Marschewski concluded
that Petitioner had not done.
consideration, the Court finds that Petitioner's
objections offer neither law nor fact which would cause the
Court to deviate from Judge Marschewski's Report and
Recommendation. Petitioner was not sentenced under the Armed
Career Criminal Act's “residual clause, ” and
as such, Johnson and Welch have no
applicability here. Petitioner's motion was filed more
than one year after his judgment of conviction became final.
Thus, Petitioner's motion to vacate is untimely unless
equitable tolling applies. Petitioner has not argued that
equitable tolling applies in this instance and the Court
finds that he has failed to establish the applicability of
in light of the facts that Petitioner filed the instant
motion more than one year after his conviction became final
and that Johnson and Welch are
inapplicable, the Court finds that Petitioner's Motion to
Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C.
§ 2255 (ECF No. 39) should be dismissed as ...