McPherson v. United States

Background

Craig McPherson pleaded guilty to conspiring to commit a Hobbs Act robbery. The court sentenced him to 144 months in prison followed by three years of supervised release. His plea agreement included a waiver of his right to appeal or otherwise challenge his sentence if the sentence was within or below the agreed Guidelines range. The Second Circuit dismissed his direct appeal because of that waiver.

McPherson filed an earlier motion under 28 U.S.C. § 2255, which allows a federal prisoner to ask the sentencing court to vacate, set aside, or correct a sentence. The court allowed him to withdraw that motion without prejudice, meaning the withdrawal itself did not bar refiling. The court had expressly left open whether that earlier motion would count as his first § 2255 motion under the Antiterrorism and Effective Death Penalty Act of 1996.

Whether the Earlier Motion Counted

A later § 2255 motion generally cannot be filed in the district court unless the appropriate court of appeals first authorizes it. The court explained that an earlier motion counts as a first motion when it was decided on the merits or dismissed with prejudice. An earlier motion withdrawn without prejudice because of a curable procedural problem or unexhausted claims generally does not count.

The court applied the rule that the circumstances surrounding withdrawal determine whether the earlier motion should be treated as a merits-based withdrawal. It focused on the timing of McPherson’s withdrawal request: he sought withdrawal after the Supreme Court decided Beckles v. United States, which the court found had foreclosed most of his arguments. The court also considered that McPherson was represented by counsel during the withdrawal process. Although McPherson had not expressly admitted that his earlier motion lacked merit, the court found that the objective circumstances showed he understood that his claims lacked merit. It therefore held that the 2016 motion counted as his first § 2255 motion.

Current Motion and Transfer

Because the current motion was a second or successive motion, the court considered whether to transfer it to the Second Circuit for possible authorization. A successive motion may proceed only if it relies on newly discovered evidence that would show, by clear and convincing evidence, that no reasonable factfinder would have found the movant guilty, or on a new constitutional rule made retroactive by the Supreme Court.

McPherson did not present newly discovered evidence. The court construed his other arguments as relying on Johnson v. United States, Sessions v. Dimaya, and United States v. Davis, decisions addressing unconstitutional vagueness in certain sentencing or crime-of-violence provisions. The court concluded that these decisions did not apply to McPherson’s conviction for Hobbs Act robbery conspiracy because the statute of conviction did not contain the type of residual clause involved in those cases.

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 found that the enhancement did not rely on a residual clause or on a definition of “violent felony” or “crime of violence.” The court additionally noted that Beckles rejected vagueness challenges to the advisory sentencing Guidelines. The court described the motion as wholly without merit and concluded that transfer to the Second Circuit would not serve the interests of justice.

Other Requests and Disposition

McPherson requested appointed counsel and a hearing. The court found no demonstrated need for appointed counsel because his § 2255 proceedings had concluded and his application was being rejected. It denied a hearing because the motion and the existing record conclusively showed that he was not entitled to relief.

Judge William H. Pauley III denied McPherson’s § 2255 motion, declined to transfer it to the Second Circuit, denied the hearing request, 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 pending motions, and ordered case numbers 19cv8635 and 19cv11036 closed.