Zuschin v. United States of America

Middle District of Florida, flmd-8:2016-cv-01362

ORDER denying {{5}} Motion for Reconsideration. Signed by Judge Susan C Bucklew on 9/14/2016. (JD)

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PageID 62 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION WILLIAM ZUSCHIN, Petitioner, Case No.: 8:16-cv-1362-T-24MAP vs. UNITED STATES OF AMERICA, Respondent. __________________________/ ORDER This cause comes before the Court on Petitioner William Zuschin's motion to reconsider order dismissing motion to vacate, set aside, or correct an allegedly illegal sentence pursuant to 28 U.S.C. § 2255 and to appoint the Federal Defender's Office. (Dkt. 5). The United States has filed a response opposing the motion for reconsideration. To the extent the motion asks that the Federal Defender's Office be appointed, it is granted. To the extent it asks for a reconsideration of the Court's order dismissing Petitioner's § 2255 motion, it is denied. On December 20, 1995, this Court sentenced Petitioner to 360 months incarceration. Petitioner was sentenced as a career offender, but he was not sentenced under the Armed Career Criminal Act ("ACCA"). On May 31, 2016, Petitioner filed his § 2255 motion, arguing that the United States Supreme Court decision in Johnson v. United States, 135 S.Ct. 2551 (2015), in which the Supreme Court held that imposing an increased sentence under the residual clause of the ACCA violates due process, afforded him relief. The Court found that Petitioner's motion was untimely under § 2255(f)(1) because it was filed more than one year after his judgment of conviction became final and that Petitioner could not rely on Johnson to establish the timeliness of his motion under § 2255(f)(3). Petitioner's § 2255 motion was dismissed as untimely. PageID 63 Petitioner asks the Court to reconsider and argues that whether a career offender sentenced under the mandatory guidelines is eligible for Johnson relief is an open question in this circuit. However Petitioner is wrong. As the Government points out in its response, Petitioner's argument is foreclosed by United States v. Matchett, 802 F.3d 1185, 1193-96 (11th Cir. 2015), in which the Eleventh Circuit held that the vagueness doctrine, upon which the Supreme Court invalidated the ACCA's residual clause in Johnson, did not apply to the Advisory Guidelines. Then in the case of In re Griffin, 2016 WL 3002293, at *4-5 (11th Cir. May 25, 2016), the Court determined that the Guidelines, whether advisory or mandatory, cannot be unconstitutionally vague. See also In re Anderson, 2016 WL 3947746 (11th Cir. July 22, 2016). Furthermore, the Court concluded in the case of In re Griffin that even if Johnson applied to the Sentencing Guidelines, the Supreme Court's ruling in Welch v. United States, 578 U.S. ___, 136 S. Ct. 1257, 194 L.Ed.2d 387 (2016), did not make Johnson retroactive based on a Guidelines challenge. Id. Accordingly, the Motion to Reconsider is DENIED. DONE AND ORDERED at Tampa, Florida, this 14th day of September, 2016. Copies to: Counsel of Record 2