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McKeller v. United States

United States District Court, D. New Jersey

September 18, 2019

LAMONT McKELLER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          LISA EVANS LEWIS, ESQ. OFFICE OF THE FEDERAL PUBLIC DEFENDER Attorney for Petitioner.

          GABRIEL JOHN VIDONI, ESQ. GLENN J. MORAMARCO, ESQ. UNITED STATES ATTORNEY'S OFFICE Attorneys for Respondent.

          OPINION

          HONORABLE ROBERT B. KUGLER, JUDGE.

         I. INTRODUCTION

         Lamont McKeller ("Petitioner") moves to vacate, correct, or set aside his federal sentence pursuant to 28 U.S.C. § 2255. (Petition [Docket Item 1]; United States v. McKeller, No. 01-cr-0105-1 (D.N.J. June 28, 2002) .) Respondent United States of America ("Respondent") opposes the motion. [Docket Item 4.] Petitioner did not file a traverse. For the reasons stated herein, the Court will dismiss the motion as time-barred, and no certificate of appealability will issue.

         II. BACKGROUND

         Petitioner was indicted on one count of bank robbery, in violation of 18 U.S.C. §§ 2113(a) and 2, (Indictment [Docket Item 1] in Crim. No. 01- 0105-1), concerning the robbery of a PNC Bank in Evesham Township, New Jersey in April 2000.

         Petitioner entered into a plea agreement with the United• States on March 8, 2002. (Plea Agreement [Docket Item 27] in Crim. No. 01- 0105-1.) The plea agreement contained certain stipulations by the parties, including that an increase of 3 levels was warranted as a dangerous weapon was brandished during the robbery, U.S.S.G. § 2B3.l(b)(2)(E). (Id.)

         Petitioner appeared before the late Honorable Jerome B. Simandle, D.N.J., with counsel to plead guilty on March 8, 2002. At that time, Petitioner submitted an Application for Permission to Enter Plea of Guilty. (Rule 11 Form [Docket Item 27] in Crim. No. 01-0105-1.)

         The parties next appeared before Judge Simandle for sentencing on June 28, 2002. At that time, the Court found that Petitioner had a criminal history level of VI and offense level of 29, resulting in a Guideline range of 151-188 months. The Court imposed a sentence of 151 months, 41 months of which were to be served concurrently with an unrelated conviction from the State of Delaware. United States v. McKeller, No. 01-cr-0105-1 (D.N.J. June 28, 2002) . Petitioner appealed his sentence to the Court of Appeals for the Third Circuit. United States v. McKeller, No. 02-2902 (3d Cir. filed July 8, 2002) . The Court of Appeals dismissed the appeal on March 14, 2003, for lack of jurisdiction. 63 F.App'x 599 (3d Cir. 2003) .

         Petitioner filed the instant motion to correct, vacate, or set aside his sentence on June 20, 2016. [Docket Item 1.] Respondent answered on March 26, 2018. [Docket Item 4.] Petitioner did not file a traverse or otherwise respond to the answer.

         III. ANALYSIS

         In his motion, Petitioner argues his sentence violates the Constitution because the Supreme Court's ruling in Johnson v. United States, 135 S.Ct. 2551 (2015), found the residual clause in the Armed Career Criminal Act ("ACCA") to be constitutionally void for vagueness. [Docket Item 1.] Petitioner further argues that his sentence was impacted by his designation as a "career offender" under the mandatory Sentencing Guidelines, which contained a clause identical to that found unconstitutional in Johnson. [Id. ]

         Respondent argues the motion should be denied because Petitioner has suffered no prejudice as a result of his designation as a career offender, because the motion is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), because the motion is barred by the Teague[1] retroactivity standard, and because the motion is procedurally defaulted. [Docket Item 4.] It further argues Petitioner has not established that Johnson's reasoning applies in a mandatory Sentencing Guidelines case and ...


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