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Grovener v. United States

United States District Court, S.D. Georgia, Brunswick Division

July 12, 2017

CALVIN RYDELL GROVENER, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION.

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         Calvin Rydell Grovener (“Grovener”), who is currently incarcerated at the Federal Correctional Institution in Estill, South Carolina, filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) The Government filed a Response. (Doc. 5.) For the reasons which follow, I RECOMMEND that the Court DENY Grovener's Motion and DIRECT the Clerk of Court to CLOSE this case. I also RECOMMEND that the Court DENY Grovener a Certificate of Appealability and DENY Grovener in forma pauperis status on appeal.

         BACKGROUND

         In August 2013, Grovener pled guilty in this Court to possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Plea, United States v. Grovener, 2:13-cr-24 (S.D. Ga. Aug. 29, 2013), ECF No. 65. The Honorable Lisa Godbey Wood sentenced Grovener to 83 months' imprisonment. J., United States v. Grovener, 2:13-cr-24 (S.D. Ga. Apr. 10, 2014), ECF No. 76. Grovener's sentence was calculated based on his total offense level of 23 and a criminal history category of IV. (Pre-Sentence Investigation report (“PSI”), ¶¶ 27, 48.) Grovener did not file an appeal. On June 13, 2016, Grovener filed this Section 2255 Motion, asserting that he should be resentenced in light of the United States Supreme Court's decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (June 26, 2015).

         DISCUSSION

         Grovener asserts that he is “challenging the residual clause elements of his decision . . . .” (Doc. 1, p. 4.) Grovener loosely contends that his sentence was improperly enhanced pursuant to the residual clause because the Johnson Court found the residual clause of the Armed Career Criminal Act (the “ACCA”), 18 U.S.C. § 924(e), to be unconstitutionally vague. (Id.)

         The Government argues that the Supreme Court's decision in Johnson is inapplicable to Grovener's Motion because he was sentenced under the United States Sentencing Guidelines (the “Guidelines”) and not the ACCA. Furthermore, the Government avers that, even if Johnson were applicable to the Guidelines, Grovener was not sentenced under any “crime of violence” language similar to the ACCA provision rendered unconstitutionally vague by Johnson. Instead, Grovener's base offense level “was increased because of his prior conviction for a ‘controlled substance offense'” under the Guidelines. (Doc. 5, p. 3 (citations omitted).)

         I. Whether Johnson Applies to Grovener's Motion

         In Johnson, the Supreme Court held that “imposing an increased sentence under the residual clause of the ACCA violates the Constitution's guarantee of due process[.]” ___ U.S. at ___, 135 S.Ct. 2551, 2563. The ACCA provides enhanced penalties for defendants who are (1) convicted of being felons in possession of firearms in violation of 18 U.S.C. § 922(g) and (2) have “three prior convictions . . . for a violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1) (emphasis added). The residual clause of the ACCA defines “violent felony” as, inter alia, a felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. at § 924(e)(2)(B) (emphasis added). In Johnson, the Supreme Court found the “residual clause” so vague as to violate due process. See ___ U.S. at ___, 135 S.Ct. at 2557.

         However, Grovener was sentenced under the Guidelines and not the ACCA. Presumably, Grovener asserts that Johnson applies to his Motion because the “crime of violence” definition contained within the Guidelines' career offender enhancement provision is identical to the residual clause language found unconstitutional in Johnson.[1] U.S.S.G. § 4B1.2(a)(2). However, the Supreme Court explicitly held in Beckles v. United States, U.S., 137 S.Ct. 886 (March 6, 2017), that the holding in Johnson does not apply to the residual clause of the Guidelines. More importantly, Grovener's sentence was not calculated based on any “crime of violence” Guideline. Rather, Grovener's sentence was based, in part, on his prior conviction for a controlled substance offense. (PSI, ¶¶ 18, 44, 48.) Grovener did not receive any enhancement in his Guidelines range for having committed a “crime of violence.” Thus, even if Johnson were to apply to the “crime of violence” definition under the Sentencing Guidelines-which the Supreme Court explicitly held that it did not in Beckles-the holding would still be inapplicable to Grovener's Motion.

         Consequently, Grovener is not entitled to his requested relief, and I RECOMMEND the Court DENY his Section 2255 Motion.

         II. Leave to Appeal in Forma Pauperis and Certificate of Appealability

         The Court should also deny Grovener leave to appeal in forma pauperis. Though Grovener has, of course, not yet filed a notice of appeal, it would be appropriate to address these issues in the Court's order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal is filed”).

         An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691 (M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or argument is frivolous when it appears the factual allegations are clearly baseless or the legal theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is frivolous, and thus, not brought in good faith, if it is ...


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