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Rush v. United States

United States District Court, D. New Jersey

September 18, 2017

BORN ISLAM RUSH, Petitioner,
v.
UNITED STATES OF AMERICA,

          Alison Brill, Esq. Attorneys for Petitioner Born Islam Rush

          William E. Fitzpatrick, Acting U.S. Attorney Molly S. Lorber, AUSA United States Attorney's Office Attorneys for Respondent United States of America

          OPINION

          ANNE E. THOMPSON U.S. DISTRICT JUDGE

         I. INTRODUCTION

         Born Islam Rush ('"Petitioner") moves to vacate, correct, or set aside his federal sentence pursuant to 28 U.S.C. § 2255. Motion, Docket Entry 1. Respondent United States of America opposes the motion. Answer, Docket Entry 11. For the reasons stated herein, Petitioner's motion is denied, and no certificate of appealability will issue.

         II. BACKGROUND

         Petitioner pled guilty to a superseding information charging him with distribution of 5 or more grams of crack cocaine, 21 U.S.C. § 841. United States v. Born Islam Rush, No. 09-cr-174 (D.N.J. Jan. 25, 2011). At sentencing, Chief Judge Garrett E. Brown, Jr., D.N.J., [1] determined Petitioner had two prior convictions that qualified him as a career offender under the sentencing guidelines. "Mr. Rush was designated as a career offender with a base offense level of 34, a total offense level of 31, a criminal history category of VI, and an advisory guideline range of 188 to 235 months." Petition at 2. The court imposed a 96-month sentence.

         On June 26, 2015, the United States Supreme Court struck down the residual clause of the Armed Career Criminal Act ("ACCA") as unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551 (2015). "The residual clause defined a crime as a Violent felony' if it 'otherwise involves conduct that presents a serious potential risk of physical injury to another.'" In re Hoffner, No. 15-2883, 2017 WL 3908880, at *2 (3d Cir. Sept. 7, 2017) (precedential) (quoting 18 U.S.C. § 924(e) (2) (B) (ii)) . Petitioner thereafter filed his first motion under 28 U.S.C. § 2255 on May 25, 2016 challenging his designation as a career offender under the sentencing guidelines.[2] The Court ordered Respondent to answer the petition on May 26, 2016; however, Chief Judge Simandle issued a standing order on June 23, 2016 staying all cases seeking relief under Johnson. The standing order provided for a 150-day period in which petitioners could supplement their Johnson motions, followed by a 150-day period for the United States to answer, See Standing Order 16-2, available at http://www.njd.uscourts.gov/sites/njd/files/Johnson.pdf.

         The Court conducted a telephone conference with the parties on January 11, 2017 at which time the parties agreed to lift the stay imposed by the standing order and to a briefing schedule. Instead of filing an answer, Respondent filed a motion to stay briefing pending the Supreme Court's decision in Beckles v. United States, No. 15-8544. Petitioner objected. Before the Court could rule on the motion, the Supreme Court determined the advisory sentencing guidelines were not subject to vagueness challenges. Beckles v. United States, 137 S.Ct. 886 (2017). The Court dismissed Respondent's motion as moot, and Respondent filed its answer arguing Petitioner's § 2255 motion was meritless in light of Beckles.

         The matter is now ripe for decision.[3]

         III. STANDARD OF REVIEW

Section 2255 provides in relevant part that
[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). A district court must hold an evidentiary hearing on a § 2255 motion unless the "motion and the files and records of the case conclusively show" that the movant is not entitled to relief. 28 U.S.C. § 2255(b); see also United States v. Booth,432 F.3d 542, 545-46 (3d Cir. 2005). Here, the ...


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