United States District Court, D. New Jersey
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
E. THOMPSON U.S. DISTRICT JUDGE
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.
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.,  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
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. 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
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.
matter is now ripe for decision.
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