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United States v. Sherrick

United States District Court, W.D. Louisiana, Lake Charles Division

July 27, 2018

UNITED STATES OF AMERICA
v.
JOSEPH G. SHERRICK

          MEMORANDUM RULING

          JAMES T. TRIMBLE, JR. UNITED STATES DISTRICT JUDGE.

         Before the court is a "Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" (R. #116) and "Petitioner's Motion for Substitution of Counsel, Motion to Consolidate Cases, and Motion for Substitution of Parties" (R. #125). In the motion to vacate, Defendant, Joseph G. Sherrick, seeks relief pursuant to a recent Supreme Court Decision, Johnson v. United States;[1] in the second motion, Mr. Sherrick requests (1) the appointment of conflict-free counsel, (2) that his 28 U.S.C. § 2241 petition[2] be consolidated with the instant action, and (3) that the current Acting Warden, Billy J. Keith, be substituted for the former retired Warden Rivera.

         PROCEDURAL BACKGROUND

         On November 18, 2002, Mr. Sherrick pleaded guilty to one count of possession of a firearm by a convicted felon;[3] the Pre-Sentence Investigation Report (PSR) determined that Mr. Sherrick was subject to the enhanced penalty provision of the Armed Career Criminal Act ("ACCA").[4] Mr. Sherrick's Criminal History was established as a Category VI. The PSR did not specify which conviction the classification was based; Mr. Sherrick had three prior convictions for "serious drug offenses," as defined for § 924(e) purposes which included two 1998 Louisiana state court convictions for "Distribution of Marijuana" and one 1999 Louisiana state court conviction for the same offense.[5]

         Mr. Sherrick's Criminal History Category VI, coupled with a total offense level of 33, resulted in a then-mandatory guideline range of 239-293 months.[6] On May 14, 2003, Mr. Sherrick was sentenced to 293 months of imprisonment.

         On May 13, 2005, pursuant to a successful 28 U.S.C. § 2255 motion, Mr. Sherrick was resentenced to the same 293 months of imprisonment, with the proviso that his federal sentence run concurrently with an undischarged state sentence.[7]

         Mr. Sherrick filed the instant motion to vacate, set aside, or correct sentence in light of the U.S. Supreme Court's ruling in Johnson v. United States[8]; the Office of Public Defender was appointed to represent Mr. Sherrick in connection with the § 2255 motion. At Mr. Sherrick's request, the undersigned granted Mr. Sherrick's motion to withdraw that Office as his counsel.[9]

         Motion to vacate

         In his motion to vacate, Mr. Sherrick seeks relief under Johnson. Mr. Sherrick argues that the ruling in Johnson invalidated the so-called "residual clause" of 18 U.S.C. § 924(e)(2)(B)(ii). Thus, he maintains his battery conviction is no longer a predicate "violent felony" for purposes of the ACCA. He then argues that Johnson similarly invalidates the "crime of violence" definitions applicable to certain provisions in the guidelines. Mr. Sherrick also suggests that his prior drug offenses cannot be separately counted under the ACCA because they were adjudicated in the same judicial proceeding.[10] Finally, Mr. Sherrick maintains that his § 2255 motion is timely as it was filed within a year of the Johnson decision.

         The court agrees that the Johnson decision invalidated the residual clause of § 924(e)(2)(B)(ii). However, the clause is inapplicable because at least three prior convictions were for "serious drug offenses," and the Supreme Court has determined that Johnson does not affect the definitions included in the guidelines.

         Mr. Sherrick's § 2255 motion is time-barred. § 2255 motions are subject to a one-year statute of limitations which runs from the latest of-

(1) The date on which the judgment of conviction becomes final;
(2) The date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) The date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme court and made retroactively applicable to cases on collateral review; or (4) The date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.[11]

         In Johnson, the Supreme Court invalidated the residual clause of the ACCA finding that it "denies fair notice to defendants."[12] However, in that same ruling, the Supreme Court expressly left other portions of the ACCA intact; for purposes of this ruling, the rest of the definition of "violent felony," and the entire definition of "serious drug offense" was not invalidated.[13] The Fifth Circuit and other circuits have recognized the Supreme Court's ruling that Johnson addressed the residual clause of the ""violent felony" provision, which is distinguishable from the "serious drug offense" definition.[14]

         Mr. Sherrick argues that his sentence was a "single sentence" because he was sentenced on the same day and at the same time. He then posits that because it was a "single sentence", this does not qualify him to be sentenced under the ACCA. Mr. ...


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