United States District Court, E.D. Kentucky, Southern Division, Pikeville
Gregory F. Van Tatenhove United States District Judge.
matter is before the Court on the Report and Recommendation
of United States Magistrate Judge Robert E. Wier that was
filed on March 3, 2017. [R. 41.] On June 14, 2016, the
defendant, James Earl Wilson, filed a pro se motion
under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody based on a claim that
the Court improperly sentenced him as a career offender under
the Sentencing guidelines pursuant to his understanding of
the decisions reached by the Supreme Court in Johnson v.
United States, 135 S.Ct. 2251 (2015), and then adopted
by the Sixth Circuit in United States v. Pawlak, 822
F.3d 902, 907 (6th Cir. 2016). [R. 28.] The Government
motioned for a stay in resolving the defendant's motion
until the Supreme Court reached a decision in Beckles v.
United States, 137 S.Ct. 886 (2017), and this Court
granted that motion. [R. 33. R. 34.] The Supreme Court has
rendered their decision and, consistent with local practice,
Magistrate Judge Wier's Report and Recommendation
addressed Mr. Wilson's § 2255 habeas petition. [R.
considering the record, Judge Wier determined that Mr. Wilson
is not entitled to the relief sought under the
Johnson and Pawlak cases. [See R.
41.] Specifically, Judge Wier explained that Mr. Wilson's
only claim for relief was that “the residual clause in
the career offender provision (U.S.S.G. § 4B1.2(a)(2)),
which is identical to the ACCA residual clause, is void for
vagueness.” [R. 41 at 3 (citing R. 28 at 2).] However,
the defendant's claim was filed based on an understanding
of the results reached in Johnson, which have since
been abrogated by the Beckles decision. Beckles
v. United States, 137 S.Ct. at 897. The Supreme Court
held that “the advisory Sentencing Guidelines,
including § 4B1.2(a)'s residual clause, are not
subject to a challenge under the void-for-vagueness
doctrine.” Id. at 896. Accordingly,
Johnson and Pawlak no longer provide Mr.
Wilson with any basis for relief.
this Court must make a de novo determination of
those portions of a recommended disposition to which
objections are made. 28 U.S.C. § 636(b)(1)(c). When no
objections are made, however, this Court is not required to
“review . . . a magistrate's factual or legal
conclusions, under a de novo or any other standard . . .
.” Thomas v. Arn, 474 U.S. 140, 150 (1985).
Parties who fail to object to a Magistrate's Report and
Recommendation are also barred from appealing a district
court's order adopting that Report and Recommendation.
United States v. Walters, 638 F.2d 947 (6th Cir.
1981). Defendant Wilson did not object to the Magistrate
Judge's R&R. Nevertheless, this Court has considered
the record, and it ultimately agrees with the Magistrate
Judge's recommendation regarding the applicability of
Johnson and Pawlak to Mr. Wilson's
case. Furthermore, the Court declines to issue a certificate
of appealability. The Court determines that reasonable
jurists would not find the denial of Wilson's construed
§ 2255 motion debatable. See Slack v. McDaniel,
529 U.S. 473, 484 (2000).
and the Court being sufficiently advised, it is hereby
Magistrate Judge Wier's Report and Recommendation [R. 41]
as to James Earl Wilson is ADOPTED as and for the opinion of
Wilson's petition for habeas corpus relief [R. 28]
pursuant to § 2255 is DENIED;
Certificate of Appealability is DENIED; and
Judgment in favor of the Respondent, United States of
America, will be entered contemporaneously herewith and Case
No. 7:07-cr-00027-GFVT will be STRICKEN from the Court's
 The Supreme Court in Johnson
found that the residual clause of the Armed Career Criminal
Act (ACCA) (18 U.S.C. § 924(e)(1)) was void for
vagueness and was thus unconstitutional. 135 S.Ct. at 2563.
In Welch v. United States, the Court held that
Johnson was to be retroactively applied to all cases
in collateral review. 136 S.Ct. 1257, 1268 (2016).
“Here, the Court did not sentence Wilson under the
ACCA, which applies only to § 922(g) violators- Wilson
violated 18 U.S.C. § 1791(a)(2) and (b)(3). However, the
Court did sentence Wilson as a career offender under U.S.S.G.
§ 41B.1.1, see DE #32 (Presentence
Investigative Report) ¶ 17; DE #36 (Sentencing
Transcript), at 4 (adopting PIR Guideline Calculation), and
the Sixth ...