United States District Court, S.D. New York
LORETTA A. PRESKA, SENIOR UNITED STATES DISTRICT JUDGE.
the Court are three motions submitted by Petitioner Bernard
Barnett ("Petitioner" or "Barnett"): (1)
Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255
in Light of Johnson v. United States, 135 S.Ct. 2551
(2015)("Johnson Submission"), dated July
7, 2017 [dkt. no. 500]; (2) Motion for Review Extreme
Sentence under the Holloway Doctrine
("Holloway Submission"), dated Nov. 7,
2017 [dkt. no. 510] and (3) Motion for a Reduction of the Term
of Imprisonment Based on Section 404 of the First Step Act of
2018, Pub. L. No. 115-391 § 404(b) (2018) ("FSA
Motion" or "First Step Act Motion"), dated
Mar. 25, 2019 [dkt. no. 525].
Government has filed separate opposition letters in response
to Barnett's § 2255 Motions and to Barnett's FSA
Motion. (See Letter Response in Opposition to Barnett's
§ 2255 motion ("Gov't § 2255 Opp."),
dated Jan. 15, 2019 [dkt. no. 518]; Letter Response in
Opposition to Barnett's First Step Act Motion TGov't
FSA Opp."), dated Apr. 30, 2019 [dkt. no. 531]).
review of the aforementioned materials, this Court finds that
(1) Petitioners § 2255 Motions are denied in their
entirety on procedural grounds; and (2) Petitioner is
eligible under the First Step Act for a reduction of sentence
on Count Three but is not eligible for a reduction of
sentence on Count One, therefore resulting in no change in
the life-sentence currently being served.
December 6, 1991, a jury found Barnett guilty of six counts:
(1) conspiracy to distribute narcotics, in violation of 21
U.S.C. § 846; (2) possession with intent to distribute
crack cocaine, in violation of 21 U.S.C. § 841(b)(1)(A);
(3) possession with intent to distribute cocaine-base, in
violation of 21 U.S.C. § 841 (b)(1)(C); (4) the use of a
firearm in relation to drug trafficking, in violation of 18
U.S.C. § 924(c); (5) possession of a firearm after a
felony conviction, in violation of 18 U.S.C. §
922(g)(1); and (6) maintaining a place to manufacture and
distribute narcotics, in violation of 21 U.S.C. §
856(a)(1). See United States v. Barnett, 870 F.Supp.
1197, 1200 (S.D.N.Y. 1994).
was sentenced by the Honorable David N. Edelstein on August
13, 1992 to life imprisonment on Counts One and Three based
on § 4B.1 ("Career Offender Provision") of the
U.S. Sentencing Guidelines. See United States v.
Barnett, No. 90-cr-913, 2001 WL 883119, at *1 (S.D.N.Y.
Aug. 3, 2001).
October 1993, the Court of Appeals affirmed Barnett's
convictions by summary order and denied Barnett's first
petition for relief pursuant to 28 U.S.C. § 2255.
See United States v. Roberts, 9 F.3d 1537 (2d Cir.
1993); see Barnett, 870 F.Supp. at 1210. Barnett has
since accumulated "an extensive history of filing with
this Court and other federal courts." Barnett v.
United States, Nos. 11-cv-2736, 90-cr-913, 2012 WL
1003592, at *1 (S.D.N.Y. Mar. 26, 2012).
2006, when Barnett moved for the nineteenth time for an order
authorizing this Court to consider a successive § 2255
motion, the Court of Appeals enjoined Barnett from filing
"any further motions, petitions, or other papers in this
Court, unless leave of the Court has first been obtained to
file such papers." United States v. Roberts,
No. 06-1702 (2d. Cir. Oct. 4, 2006). In April 2011, this
Court barred Barnett from filing any future petitions or
motions challenging his December 1991 conviction without
leave from the Court. See Barnett v. United States,
No. 11-cv-74, dkt. no. 7, at 3 (S.D.N.Y. Apr. 12, 2011).
filing a successive petition for § 2255 relief in 2016,
Barnett obtained leave to file an application with the Court
of Appeals. (See dkt. No. 485). The Court of Appeals
granted leave to file the successive motion and transferred
the motion back to this Court for consideration. (Dkt. no.
487 (granting Barnett's motion to challenge his career
offender status); see dkt. no. 488)(transferring the
motion back to this Court)). The Motion is now pending before
this Court. (See Johnson Submission). Barnett
subsequently made additional filings in connection with this
motion. All pending motions are addressed below.
Petitioner's § 2255 Motions
Barnett's Johnson Submission
Johnson Submission, Petitioner requests that his
sentence be vacated because his conviction for New York
first-degree robbery under New York Law in 1974 did not
qualify as a predicate "crime of violence" under
United States Sentencing Guidelines ("USSG" or
''Guidelines") Section 4B1.1 (the Career
Offender provision). (See Johnson Submission at 7;
see also Gov't. 2016 Opp. at 6). Petitioner
therefore asserts that the sentence imposed in 1992 violates
the Due Process Clause. (See Johnson Submission at
explained below, this Court adopts the arguments put forth by
the Government and holds that Barnett has failed to satisfy
the procedural requirements of § 2255. The Motion is
barred by the statute of limitations in 28 U.S.C. §
2255(f) and therefore cannot satisfy the restrictions on