United States v. Pullen

Defendant Bobby Pullen was sentenced as a career offender at a time when the United States Sentencing Guidelines were mandatory. In 2015, the Supreme Court decided Johnson v. United States, 135 S. Ct. 2551 (2015), holding the residual clause of 18 U.S.C. 924(e)(2)(B)(ii) as unconstitutionally vague. As the residual clause of 924(e)(2)(B)(ii) was identical in wording to the residual clause of USSG 4B1.2. Relying on "Johnson," Pullen moved for authorization to file a second or successive 28 U.S.C. 2255 motion. The Tenth Circuit Court of Appeals determined Pullen made a prima facie showing that Johnson created a retroactive, new rule of constitutional law applicable to the mandatory Guidelines. The district court, however, concluded Johnson did not actually create a new rule applicable to the mandatory Guidelines and dismissed Pullen’s section 2255 motion pursuant to 28 U.S.C. 255(h)(2), a provision governing authorization to file a second or successive section 2255 motion. The district court did, however, grant Pullen a certificate of appealability (“COA”). With respect to Pullen’s substantive challenge, the Tenth Circuit found the Supreme Court never recognized a void for vagueness challenge to the Guidelines and so Johnson neither created a new rule applicable to the Guidelines nor dictated that any provision of the Guidelines was subject to a void for vagueness challenge. Accordingly, the Tenth Circuit affirmed the district court’s judgment. View "United States v. Pullen" on Justia Law