United States v. Bradley

          ORDER

          PHILIP A. BRIMMER, CHIEF JUDGE

         Movant, Jason Vincent Bradley, has filed, pro se, a “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence By a Person in Federal Custody” (“§ 2255 motion”) [Docket No. 58] and a motion entitled “Bill of Equity” [Docket No. 76].

         The Court construes Mr. Bradley's filings liberally because he is not represented by counsel. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court will not act as his advocate. See Id. For the reasons discussed below, Mr. Bradley's motions will be denied.

         I. PROCEDURAL HISTORY

         On April 30, 2015, Mr. Bradley pled guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (Count 1); possession of a controlled substance with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Counts 2-3); and possession of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 4). Docket No. 1; Docket No. 41; Docket No. 42 at 1-2; Docket No. 57 at 1-2. The presentence report (“PSR”) found that Mr. Bradley qualified as a career offender under U.S.S.G. § 4B1.1, which increased his advisory Guidelines range from 77 to 96 months imprisonment to 262 to 327 months imprisonment. See Docket No. 53 at 6-7, 18.^[1]

         On August 28, 2015, the Court adopted the PSR without change, but granted the parties' motions for a variant sentence. Docket No. 56; Docket No. 57 at 8. The Court sentenced Mr. Bradley to a 180-month term of imprisonment (120 months on Counts 1-3, to be served concurrently, and 60 months on Count 4, to be served consecutively). Docket No. 56; Docket No. 57 at 3. Mr. Bradley did not file a direct appeal.

         On June 20, 2016, Mr. Bradley moved to vacate his sentence under § 2255 based on the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Docket No. 58. The government filed a response to Mr. Bradley's motion on March 22, 2017. Docket No. 75. On May 25, 2018, Mr. Bradley filed a motion entitled “Bill of Equity, ” wherein he requests various forms of relief related to certain property held in trust. See Docket No. 76.

         II. MOTION TO VACATE

         In his motion to vacate under § 2255, Mr. Bradley contends that his sentence violates the due process principles announced in Johnson because it was enhanced under the residual clause of the United States Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2). Docket No. 58 at 7. He further argues that he was denied effective assistance of counsel because his attorney failed to challenge the constitutionality of the Guidelines' residual clause in order to negotiate a more favorable plea agreement and sentence. Id.

         Mr. Bradley's arguments do not demonstrate that he is entitled to relief under § 2255. In Beckles v. United States, 137 S.Ct. 886 (2017), the Supreme Court held that the residual clause, § 4B1.2(a)(2), in the advisory Sentencing Guidelines is not subject to vagueness challenges under the Due Process Clause. Id. at 890. Accordingly, Mr. Bradley's classification as a career offender for purposes of sentencing did not violate the due process principles announced in Johnson.^[2]

         Nor did counsel provide ineffective assistance by failing to raise the Johnson issue during plea negotiations and sentencing. Even assuming Beckles does not automatically foreclose Mr. Bradley's ineffective assistance claim, see Strickland v. Washington, 466 U.S. 668, 690 (1984) (stating that “a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct”), there was no Tenth Circuit case law extending Johnson to the Guidelines' residual clause at the time of Mr. Bradley's sentencing.^[3] Mr. Bradley cannot show that counsel's performance was deficient merely because he failed to anticipate a change in the law. See Battle v. Workman, 353 Fed.Appx. 105, 110 (10th Cir. 2009) (unpublished) (holding that “counsel's assistance could not have been ineffective merely because he failed to anticipate a change in the law before it occurred”); United States v. Harms, 371 F.3d 1208, 1212 (10th Cir. 2004) (“[C]ounsel's failure to raise or recognize a potential legal argument does not automatically render counsel's performance constitutionally deficient.”). The Court will therefore deny Mr. Bradley's motion to vacate his sentence under § 2255.

         Under Rule 11(a) of the Section 2255 Rules, a “district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Under 28 U.S.C. § 2253(c)(2), the Court may issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right.” Such a showing is made only when “a prisoner demonstrates ‘that jurists of reason would find it debatable' that a constitutional violation occurred, and that the district court erred in its resolution.” United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). In the present case, the Court concludes that Mr. Bradley has not made a substantial showing of the denial of a constitutional right. Therefore, the Court will deny a certificate of appealability.

         III. BILL OF EQUITY

         In his “Bill of Equity, ” Mr. Bradley requests various forms of relief, including an accounting of certain property held in trust, on the ground that he is a “Private Moorish American and foreign national” asserting “cestuique rights.” Docket No. 76 at 1-2. The Court finds Mr. Bradley's “Bill of Equity” to be nonsensical and legally frivolous. See Mallett v. United States, 721 Fed.Appx. 836, 836-37 (10th Cir. 2018) (unpublished) (affirming dismissal of § 2241 petition as legally frivolous where the petitioner claimed he was entitled to immediate release from prison because, “as a Moorish American, he had a divine inherent ...