United States District Court, D. New Jersey
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.
HONORABLE ROBERT B. KUGLER, JUDGE.
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.
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.
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).
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.)
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) .
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.
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. ]
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 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