Opinion
CASE NO. 4:13CR316
07-01-2016
United States of America, Plaintiff-Respondent, v. Vir'Dez A. Evans, Defendant-Petitioner.
Memorandum of Opinion and Order
This matter is before the Court upon petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 23). On June 26, 2013, petitioner was charged in an indictment with a single count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) and 924(a)(2). Petitioner pled guilty to the indictment without a plea agreement. This Court calculated petitioner's sentence in accordance with U.S.S.G. § 2K2.1(a)(2), which requires that a defendant have two qualifying "crimes of violence." Petitioner's qualifying predicate offenses were two Ohio convictions for failure to comply with the order or signal of a police officer.
Petitioner now seeks to challenge his sentence under Johnson v. United States, 135 S. Ct. 2551, 2563 (2015), which struck down the residual clause of the Armed Career Criminal Act's definition of a "violent felony" as void for vagueness. Petitioner argues that his failure to comply offenses no longer qualify as violent felonies under Johnson. The Sixth Circuit, however, in In re Lewis, No. 15-3915, at *2 (June 29, 2016), held that, as applied to the residual clause of the Guidelines, Johnson is not retroactive to cases on collateral review. See also Carson v. United States, 5:11 CR 145 (N.D. Ohio May 6, 2016). Petitioner's motion is therefore DENIED.
Furthermore, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253; Fed. R. App. P. 22(b).
IT IS SO ORDERED.
/s/ Patricia A . Gaughan
PATRICIA A. GAUGHAN
United States District Judge Dated: 7/1/16