United States District Court, W.D. Kentucky, Louisville
CHARLES R. SIMPSON III, SENIOR JUDGE.
Terrell Ballanger filed a motion under 28 U.S.C. § 2255
to vacate, set aside, or correct his sentence. Mot. Vacate 1,
ECF No. 32. Ballanger challenges his conviction in light of
Johnson v. United States, 135 S.Ct. 2551 (2015).
Id. at 2. The United States responded. Resp. Opp.
Mot. Vacate 1, ECF No. 36. Ballanger replied. Reply 1, ECF
Judge Dave Whalin made findings of fact, conclusions of law,
and a recommendation. R. & R., ECF No. 39. Ballanger
makes three objections to the magistrate judge's
analysis: (1) he objects to the magistrate judge's
conclusion of law that Johnson does not extend to
permitting resentencing when the sentencing court relied on
the "force" clause or "enumerated
offenses" clause in applying the career offender
enhancement; (2) he objects to the magistrate judge's
conclusion of law that because he did not challenge the
voluntariness of his plea agreement, the waiver must be
enforced; and (3) he objects to the magistrate judge's
conclusion of law that he does not meet the standard for
issuing a certificate of appealability. Obj. 2-5, ECF No. 40.
reasons explained below, the Court will overrule
Ballanger's objections to the magistrate judge's
findings of fact, conclusions of law, and recommendation. The
Court will deny Ballanger's motion to vacate. The Court
will deny Ballanger a certificate of appealability.
Magistrate Judge's Findings of Fact
December 2007, Ballanger approached a female victim,
displayed a loaded pistol, and demanded her purse and her
2001 Honda Civic. R. & R. 1, ECF No. 39. A grand jury in
the Western District of Kentucky then indicted Ballanger on
three counts: (1) felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) and 924(e)(1), (2)
car-jacking a 2001 Honda Civic by force, violence, and
intimidation in violation of 18 U.S.C. § 2119, and (3)
using, carrying, and brandishing a firearm while carjacking
the victim in violation of 18 U.S.C. § 924(c)(1)(A)(ii).
Id. at 1-2.
2009, Ballanger entered into a plea agreement with the United
States. Id. at 2. In response to Ballanger's
guilty plea, the United States agreed to recommend a sentence
at the lowest end of the sentencing guidelines range.
Id. The plea agreement contained the following
Defendant is aware of his right to appeal his conviction and
that 18 U.S.C. § 3742 affords a defendant the right to
appeal the sentence imposed. The Defendant knowingly and
voluntarily waives the right to directly appeal his
conviction and the resulting sentence pursuant to Fed. R.
App. P. 4(b) and 18 U.S.C. § 3742. However, defendant
shall maintain his right to appeal the sentence imposed only
if the Court departs from the applicable advisory guideline
range, as determined by the Court. Defendant expressly waives
the right to contest or collaterally attack his conviction
and the resulting sentence pursuant to 28 U.S.C. § 2255
or for any other reason.
Id. at 9.
Presentence Investigation Report (PSR) stated that Ballanger
would be sentenced as an "Armed Career Criminal"
under § 4B 1.4(b)(3)(A) and 18 U.S.C. § 924(e)
because he possessed a firearm in connection with a crime of
violence and had at least three previous convictions for
offenses that qualified as violent crimes. Id. at 2.
The previous violent crimes convictions included Burglary I,
Burglary III, and four counts of Robbery I in Jefferson
County, Kentucky. Id. The PSR recommended that
Ballanger serve 188 to 235 months in addition to 7 years to
be served consecutively, followed by 3-5 years of supervised
sentencing, the Court imposed a term of 180 months of
imprisonment as to Counts One and Two of the Indictment,
which would run concurrently, and a term of 60 months of
imprisonment as to Count Three, which would run
consecutively, for a total of 240 months. Id.
does not object to the magistrate judge's findings of
fact. Obj. 3, ECF No. 40. Because Ballanger does not object
to the magistrate judge's findings of fact, the Court
accepts and adopts them in their entirety. See 28
U.S.C. § 636(b)(1)(B).
Magistrate Judge's Conclusions of Law ...