United States District Court, W.D. North Carolina, Statesville Division
Richard L. Voorhees, United States Judge
MATTER IS BEFORE THE COURT on Movant Kevin Maurice
Linder's Motion to Vacate under 28 U.S.C. § 2255
(“§ 2255 Motion”). (Doc. 1). The Government
filed a response in opposition to Linder's § 2255
Motion. (Doc. 7). In addition, Linder filed a Motion for
Release Pending § 2255 Proceeding (“Bond
Motion”), (Doc. 9), which the Government also opposed
through a response, (Doc. 10). For the reasons stated below,
this Court places Linder's § 2255 Motion, (Doc. 1),
in abeyance pending the United States Court of Appeals for
the Fourth Circuit's decision in United States v.
Brown, Case No. 16-7056, and the Bond Motion, (Doc. 9),
2003, Linder escaped from the Caldwell County Detention
Center while serving a 215-month prison term that this Court
imposed for a felony crack-cocaine trafficking offense.
United States v. Linder, Case No.
5:03-cr-00041-RLV-1, Presentence Investigation Report
(hereinafter “PSR”) (Doc. 29 at 3). Linder pled
guilty to one count of escaping from custody in violation of
18 U.S.C. § 751, an offense which carries a maximum term
of five years' imprisonment. PSR at 1. Over Linder's
objection, this Court held that a violation of 18 U.S.C.
§ 751 constitutes a “crime of violence”
under United States Sentencing Guidelines Manual
(“U.S.S.G.”) § 4B1.2, and, accordingly,
applied the career offender provisions because Linder had
numerous prior convictions for crimes of violence and for
controlled substance offenses. See PSR at 5-9;
United States v. Linder, 100 F. App'x 164, 164
(4th Cir. 2004). After setting Linder's mandatory
Guidelines range at thirty-seven to forty-six months'
imprisonment, this Court sentenced Linder to forty
months' imprisonment. Linder, Case No.
5:03-cr-00041-RLV-1, Doc. 16; see also PSR at 14;
Linder, 100 F. App'x at 164. Linder appealed his
sentence, and unsuccessfully argued that this Court erred in
determining that escape is a “crime of violence”
as defined by U.S.S.G. § 4B1.2(a). See Linder,
100 F. App'x at 164. Linder petitioned the United States
Supreme Court for certiorari; however, the Supreme Court
denied certiorari on October 4, 2004. See Linder v.
United States, 543 U.S. 856 (2004).
Section 2255 Motion
§ 2255 Motion, Linder argues that his forty-month
sentence for escape should be vacated or modified based on
Johnson v. United States, 135 S.Ct. 2551 (2015).
(Doc. 1 at 4-5). Linder advances a two-part argument for why
his designation as a career offender under the residual
clause of U.S.S.G. § 4Bl.2(a) violated due process.
Id. First, Linder contends that his sentence should
be vacated because U.S.S.G. § 4Bl.2(a) was
unconstitutionally vague. Id. Second, Linder
contends “the sentencing court was erroneously deprived
of any discretion, at the time of sentencing, to sentence a
[sic] Mr. Linder below an erroneously applied
statutory mandatory minimum sentence.” Id.
relevant part, 28 U.S.C. § 2255 provides that “[a]
prisoner in custody under sentence of a court . . . claiming
the right to be released upon the ground that the sentence
was imposed in violation of the Constitution . . . may move
the court which imposed the sentence to vacate, set aside or
correct the sentence.” 28 U.S.C. § 2255(a). A
§ 2255 movant bears the burden of proving the grounds
for collateral attack by a preponderance of the evidence.
Greene v. United States, 2017 WL 724333, at *2 (W.D.
N.C. Feb. 23, 2017) (citing Miller v. United States,
261 F.2d 546, 547 (4th Cir. 1958)). Section 2255 imposes a
“1-year period of limitation” that runs from the
latest of four dates:
(1) the date on which the judgment of conviction becomes
final; (2) the date on which the impediment to making a
motion created by governmental action . . . is removed; (3)
the date on which the right asserted was initially recognized
by the Supreme Court, if . . . made retroactively applicable
to cases on collateral review; or (4) the date on which the
facts supporting the claim or claims presented could have
been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f). Here, Linder relies on subsection
(3) and identifies Johnson as the Supreme Court case
giving rise to his claim for relief. (Doc. 1 at 4-5).
Although Linder filed his § 2255 Motion within one year
of Johnson, Johnson must have initially
recognized a right to challenge a mandatory Guidelines
sentence and this right must apply retroactively to cases on
collateral review for Linder's claim to fall within
§2255(f)(3) for purposes of determining the timeliness
of his § 2255 Motion.
the Sentencing Guidelines, a defendant is a career offender
(1) the defendant was at least eighteen years old at the time
the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is
either a crime of violence or a controlled substance offense;
and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled
§ 4Bl.l(a). Linder's § 2255 Motion focuses
solely on the second element. At sentencing, this Court
determined the second element of U.S.S.G. § 4B1.1(a) was
satisfied because escape was categorically a crime of
violence. See Linder, 100 F. App'x at 164. The
version of the Guidelines in effect at the time defined
“crime of violence” as any federal or state
offense, punishable by more than a year in prison, that:
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or (2)
is burglary of a dwelling, arson, or extortion, involves use
of explosives, or otherwise involves conduct that presents ...