United States District Court, S.D. Georgia, Brunswick Division
ORDER and MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
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.
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,
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.)
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).)
Whether Johnson Applies to Grovener's
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.
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. 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.
Grovener is not entitled to his requested relief, and I
RECOMMEND the Court DENY his Section 2255 Motion.
Leave to Appeal in Forma Pauperis and Certificate of
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
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