McPherson v. United States

Background

Craig McPherson, proceeding without a lawyer in the current matter, moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. He had pleaded guilty to conspiring to commit a Hobbs Act robbery. The court sentenced him principally to 144 months in prison followed by three years of supervised release. His plea agreement included a waiver of appellate and other sentence challenges if the sentence fell within or below the agreed Guidelines range, and the Second Circuit dismissed his direct appeal based on that waiver.

McPherson had filed an earlier § 2255 petition in 2016. After the Supreme Court decided Beckles v. United States, McPherson and his counsel sought to withdraw that petition without prejudice. The court granted the request but expressly left open whether the earlier petition would count as McPherson’s first § 2255 motion under the Antiterrorism and Effective Death Penalty Act, the federal law commonly called AEDPA.

Whether the Earlier Petition Counted

The court explained that a later § 2255 motion generally requires authorization from the appropriate court of appeals if it is “second or successive.” An earlier petition normally counts as the first petition when it was decided on the merits or dismissed with prejudice. But courts must examine the circumstances of a withdrawal to determine whether it was effectively a merits-based withdrawal.

The court found that McPherson’s 2016 petition counted as his first § 2255 motion. It relied primarily on the timing of the withdrawal: McPherson sought to withdraw after Beckles had rejected a vagueness challenge to the advisory Sentencing Guidelines. The court also considered that McPherson was represented by counsel when he sought withdrawal. Although McPherson’s statements were not entirely consistent and he did not expressly concede that his petition lacked merit, the court concluded that the objective circumstances showed that he understood his claims lacked merit.

Arguments and Transfer

Because the current motion was second or successive, McPherson could proceed only if it satisfied one of two narrow requirements: newly discovered evidence that could establish his innocence by clear and convincing evidence, or a new constitutional rule made retroactive to previously completed cases by the Supreme Court.

The court found no newly discovered evidence. It considered McPherson’s arguments based on Johnson v. United States, Sessions v. Dimaya, and United States v. Davis, which invalidated certain statutory residual clauses as unconstitutionally vague. The court concluded that those decisions did not apply to McPherson’s conviction for Hobbs Act robbery conspiracy because the statute of conviction did not contain the relevant residual clause or define a violent felony or crime of violence.

The court also rejected McPherson’s challenge to a five-level Guidelines enhancement for brandishing or possessing a firearm in connection with a robbery. It explained that the enhancement did not contain a comparable residual clause and did not depend on whether the offense involved a violent felony or crime of violence. The court further relied on Beckles, which held that the Guidelines are not subject to a vagueness challenge under the Due Process Clause. The court said the petition was wholly without merit and that transferring it to the Second Circuit would not serve the interests of justice.

Other Requests and Disposition

The court denied McPherson’s request for appointed counsel because his § 2255 proceedings had concluded and he had not shown a need for counsel. It also denied his request for a hearing because the motion and the case records conclusively showed that he was not entitled to relief.

The court denied McPherson’s § 2255 motion, declined to transfer it to the Second Circuit, declined to issue a certificate of appealability because McPherson had not made the required substantial showing of a constitutional violation, directed the Clerk to terminate the pending motions, and ordered case numbers 19cv8635 and 19cv11036 closed.

Classification

This is a procedural order because the court treated the motion as a second or successive sentence challenge and denied relief based on the statutory gatekeeping requirements and the absence of a basis for transfer. The court also discussed why McPherson’s asserted constitutional decisions did not apply, but it did not grant authorization for a successive § 2255 motion.