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Ballanger v. United States

United States District Court, W.D. Kentucky, Louisville

April 25, 2017

TIMOTHY TERRELL BALLANGER PETITIONER
v.
UNITED STATES OF AMERICA RESPONDENT Civil Action No. 3:16-CV-00409-CRS

          MEMORANDUM OPINION

          CHARLES R. SIMPSON III, SENIOR JUDGE.

         I. Introduction

         Timothy 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 No. 38.

         Magistrate 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.

         For the 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.

         II. Magistrate Judge's Findings of Fact

         In 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.

         In June 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 waiver language:

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.

         The 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 release. Id.

         At 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.

         Ballanger 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).

         III. Magistrate Judge's Conclusions of Law ...


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