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Linder v. United States

United States District Court, W.D. North Carolina, Statesville Division

May 18, 2017



          Richard L. Voorhees, United States Judge

         THIS 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), is DENIED.

         I. BACKGROUND

         In 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).


         A. Section 2255 Motion

         In his § 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.

         In 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.

         Under the Sentencing Guidelines, a defendant is a career offender if:

(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 substance offense.

         U.S.S.G. § 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 ...

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