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United States v. Taylor

United States District Court, E. D. Virginia, Alexandria Division

July 28, 2016

UNITED STATES OF AMERICA,
v.
ALBERT G. TAYLOR Civil Action No. 1:16-cv-743

          USA, Plaintiff, represented by Daniel Grooms, United States Attorney's Office & John T. Gibbs, U.S. Attorney's Office.

          MEMORANDUM OPINION

          T. S. ELLIS, III, District Judge.

         Defendant, by counsel, has filed a motion pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct the sentence imposed on him a decade ago on the ground that the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), operates to invalidate his conviction for one count of using a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). At issue on the government's motion to dismiss is whether defendant's § 2255 motion is untimely pursuant to the one-year statute of limitations set forth in 28 U.S.C. § 2255(f). Also at issue, assuming defendant's § 2255 motion is timely, is whether Johnson operates to invalidate defendant's § 924(c) conviction. Because the matter has been fully briefed and the facts and law are fully set forth in the existing record, neither oral argument nor an evidentiary hearing would aid the decisional process.[1] Accordingly, the matter is now ripe for disposition.

         I.

         On December 12, 2006, defendant pled guilty to one count of using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A); the predicate offense for this count is a violation of 18 U.S.C. § 1951 (Hobbs Act robbery). Specifically, defendant admitted, inter alia, that on or about December 13, 2014, defendant possessed and discharged a firearm in furtherance of a cocaine-related robbery in Centreville, Virginia, in the Eastern District of Virginia. On December 21, 2006, after defendant pled guilty to this crime, defendant received a sentence of 120 months' imprisonment, followed by five years' supervised release.

         Pursuant to § 924(c), a defendant who "during and in relation to any crime of violence... uses or carries a firearm... shall, in addition to the punishment provided for such crime of violence... if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years." 18 U.S.C. § 924(c)(1)(A). In order to prove a violation of § 924(c), the government must establish: (1) that the defendant possessed and discharged a firearm; and (2) that he did so during and in relation to a crime of violence. United States v. Strayhorn, 743 F.3d 917, 922 (4th Cir. 2014). Under 18 U.S.C. § 924(c)(3), a "crime of violence" is any felony:

(A) [that] has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Id. Subsection (A) and subsection (B) of § 924(c)(3) are commonly referred to as the "force clause" and the "residual clause, " respectively.

         On June 26, 2015, nearly six years after defendant's sentence was imposed, the Supreme Court issued its decision in Johnson v. United States, 135 S.Ct. 2551 (2015), addressing the definition of "violent felony" in the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). Specifically, the Supreme Court in Johnson held that the ACCA residual clause-the provision that defines a "violent felony" to include an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another, " 18 U.S.C. § 924(e)(2)(B)(ii)-is unconstitutionally vague, and therefore that "imposing an increased sentence under the residual clause of the [ACCA] violates the Constitution's guarantee of due process." Id. at 2563. Thereafter, on April 18, 2016, the Supreme Court held that Johnson announced a new "substantive rule that has retroactive effect in cases on collateral review." Welch v. United States, 136 S.Ct. 1257, 1268 (2016).

         On June 23, 2016, shortly after the Supreme Court's decision in Welch, defendant filed a motion pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct the sentence imposed on him for his § 924(c) conviction on the ground that the Supreme Court's decision in Johnson operates to invalidate this conviction. Specifically, defendant contends that the residual clause of § 924(c) is indistinguishable from the ACCA residual clause, and accordingly, the residual clause of § 924(c) is unconstitutionally vague under the rationale of Johnson.

         On July 14, 2016, the government filed a motion to dismiss defendant's § 2255 motion on the ground that collateral review of defendant's sentence or conviction is barred by the oneyear statute of limitations set forth in 28 U.S.C. § 2255(f).

         II.

         The government's motion to dismiss raises a threshold issue as to whether defendant's § 2255 motion is timely. Because defendant filed his § 2255 motion approximately a decade after his sentences of conviction and judgment became final, his § 2255 motion would typically be barred by the one-year limitations period set forth in 28 U.S.C. § 2255(f)(1). Yet, defendant contends that his § 2255 motion is timely because pursuant to 28 U.S.C. § 2255(f)(3), the limitations period runs from June 26, 2015, the date Johnson was decided. In this regard, § 2255(f)(3) provides that a one-year limitations period runs from "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Id. [2]

         The Fourth Circuit has explained that "to obtain the benefit of the limitations period stated in § 2255(f)(3), [a movant] must show: (1) that the Supreme Court recognized a new right; (2) that the right has been... made retroactively applicable to cases on collateral review'; and (3) that [the movant] filed his motion within one year of the date on which the Supreme Court recognized the right." United States v. Mathur, 685 F.3d 396, 398 (4th Cir. 2012) (quoting § 2255(f)(3)). Importantly, however, there is a question as to the meaning of the term "right" as used in § 2255(f)(3). As neither the Supreme Court nor the Fourth Circuit has grappled with this question, [3] it is appropriate, indeed necessary, to do so here.[4]

         The Supreme Court has made clear that when interpreting a statute, "the starting point... is the language itself." Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). In this regard, it is axiomatic that "[i]f the statutory language is plain, " a court "must enforce it according to its terms." King v. Burwell, 135 S.Ct. 2480, 2489 (2015). At the same time, the Supreme Court has recently explained that statutory interpretation properly proceeds "with reference to the statutory context, structure, history, and purpose, ' "as well as "common sense." Abramski v. United States, 134 S.Ct. 2259, 2267 (2014) (quoting Maracich v. Spears, 133 S.Ct. 2191, 2209 (2013)). Thus, "although the analysis properly focuses on the text, the analysis is not necessarily limited to the text." Angiotech Pharms. Inc. v. Lee, ___ F.Supp.3d ___, No. 1:15-cv-1673, 2016 WL 3248352, at *9 (E.D. Va. June 8, 2016).

         A.

         Statutory analysis of § 2255(f)(3) properly begins with the text and the "fundamental" principle that "unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning." Perrin v. United States, 444 U.S. 37, 42 (1979). In this regard, the term "right" as used in § 2255(f)(3) is generally understood to refer to a legally protected interest that one may claim against another.[5] Yet, it has long been recognized that the term "right" is ambiguous;[6] depending on the context, for example, a right can be framed broadly or narrowly. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 719-21 (1997) (cautioning that courts must articulate fundamental rights narrowly in the substantive due process context). As relevant here, the term "right" in § 2255(f)(3) could refer (i) to the right asserted by defendant not to be incarcerated pursuant to § 924(c) in light of Johnson, or (ii) the broader principle underlying Johnson that due process requires fair notice of prohibited conduct.

         The choice between these alternatives is significant here. If "right" refers to a broad principle rather than a narrow application of that principle to a specific statute, then the "right" on which defendant relies is not "newly recognized, " as § 2255(f)(3) requires, and therefore defendant cannot avail himself of § 2255(f)(3)'s limitations period. This is so because the broad principle at issue in Johnson -the Due Process Clause's requirement of fair notice of prohibited conduct-is hardly new. Indeed, the Supreme Court noted in Johnson that "[t]he prohibition of vagueness in criminal statutes is a well-recognized requirement." Johnson, 135 S.Ct. at 2557 (citing United States v. Batchelder, 442 U.S. 114, 123 (1979)). Thus, the ambiguity as to the scope of the term "right" in § 2255(f)(3) must be resolved.

         To that end, it is appropriate to turn to § 2255(f)(3)'s historical context. In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. 104-132, § 104, 110 Stat. 1214 (1996), which amended the law of habeas corpus in various ways, such as the enactment of the statute of limitations scheme set forth in § 2255(f). Importantly, the AEDPA was enacted in 1996 against a background of pre-existing Supreme Court habeas doctrine, including the Supreme Court's decision in Teague v. Lane, 489 U.S. 288 (1989), which established the circumstances in which a Supreme Court decision applies retroactively to cases on collateral review. Specifically, the Supreme Court in Teague held that "a case announces a new rule" for the purpose of retroactive application only "if the result was not dictated by precedent existing at the time when defendant's conviction became final." Id. at 301. Such a "new rule" applies retroactively to cases on collateral review only if the rule (i) places certain kinds of private, primary individual conduct beyond the power of the criminal law authority to proscribe or (ii) is a watershed rule of criminal procedure. Id. at 311.

         There can be no doubt that Congress was aware of the league framework when it enacted the AEDPA in 1996, as (i) Teague was-and is-the leading case on the nonretroactivity doctrine, [7] (ii) Teague was an interpretation of the very statutory scheme Congress amended with the AEDPA, [8] (iii) several provisions of the AEDPA contain language that tracks the Teague framework, [9] and (iv) the legislative history refers to the principles of habeas retroactivity on collateral review.[10] Thus, the Teague framework sheds light on Congress's choice of language in § 2255(f)(3). Indeed, the language of § 2255 incorporates the Teague framework in some respects and deviates from that framework in other respects. Of particular relevance here, § 2255(f)(3) specifically incorporates the Teague framework insofar as that provision refers to Supreme Court decisions that have been "made retroactively applicable to cases on collateral review, " but § 2255(f)(3) deviates from the language of Teague insofar as § 2255(f)(3) refers to a newly recognized " risks rather than a "new rule " the term used by the Supreme Court in Teague and its progeny.[11]

         There are compelling reasons to think Congress deliberately selected the term "right" in § 2255(f)(3) as a deviation from the Teague framework. For one, other provisions enacted as part of the AEDPA directly incorporate the relevant language of Teague. Section 2255(h)(2), for example, stands in stark contrast to the language of § 2255(f)(3), as § 2255(h)(2) provides that "[a] second or successive motion must be certified... by [an appellate panel] to contain... a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court that was previously unavailable." Id. (emphasis added). Similarly, 28 U.S.C. § 2254(e)(2)(A)(i) provides that in the context of a § 2254 petition, a court may hold an evidentiary hearing if the petitioner's claim is premised on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court." Id. (emphasis added). Importantly, where provisions of the same statute use different terms, it is presumed "that the enacting legislature meant those terms to have at least slightly different meanings." Caleb Nelson, Statutory Interpretation 88 (2011).[12] Thus, because Congress employed the term "rule" in clear reference to the Teague framework in other provisions of the AEDPA, there is good reason to think the term "right" in § 2255(f)(3) means something else.

         That Congress intended for § 2255(f)(3) to deviate in certain respects from the Teague framework finds further support in another phrase of that provision. Specifically, a qualifying "right" under § 2255(f)(3) must have been "recognized by the Supreme Court" Id. (emphasis added). In other words, § 2255(f)(3) applies only where the Supreme Court-rather than a lower court-has recognized a new right. By contrast, under the Teague framework existing at the time the AEDPA was enacted, a lower court decision could constitute a "new rule." See, e.g., Gilmore v. Taylor, 508 U.S. 333, 344 (1993) (concluding that a "rule announced" in a Seventh Circuit decision was "new" under the Teague framework). Thus, if Congress had said in § 2255(f)(3) that any new rule would reopen the one-year limitations period, then under Teague as understood in 1996, lower court rulings could have triggered § 2255(f)(3). Instead, Congress's language in § 2255(f)(3) triggers new filing periods only when rights are "newly recognized by the Supreme Court, " which reflects that Congress intended for new filing periods to be available in fewer instances than whenever a new rule in the Teague sense is announced. This lends credence to the conclusion that Congress's choice of the term "right" rather than "rule" in § 2255(f)(3) was also a deviation from the Teague framework intended to limit application of § 2255(f)(3).

         If Congress intended for "right" and "rule" to have different meanings, as the foregoing analysis suggests, there is good reason to conclude that "right" should be interpreted as a broad principle rather than as a narrow application of a principle to a particular set of facts or to a particular statute. To begin with, the terms "right" and "rule, " as generally understood, have distinct meanings. A "right, " as already noted, is generally understood to mean a protected interest that one may claim against another, [13] whereas a "rule" is generally understood to mean a principle that is a statement of a legal right as applied to a particular set of facts.[14] This understanding accords with the Supreme Court's use of "rule" in the Teague framework. For example, in Johnson, the Supreme Court applied a broad right-the right to fair notice of prohibited conduct-to a particular statute, and as a result, announced a new rule made retroactive under Teague, namely that the ACCA residual clause is unconstitutional. See Johnson, 135 S.Ct. at 2556-57, 2563. Thus, if a "rule" is a narrow application of a legal right, and if "rule" and "right" have different meanings, then under a plain reading of § 2255(f)(3), the term "right" refers to a general protected interest that a defendant may claim rather than a particular application of that protected interest to a particular set of facts. Under this reading of the statute, § 2255(f)(3) does not apply to defendant's case because the Supreme Court in Johnson did not recognize a new right, but instead applied a well-settled right to a particular statute, and therefore announced a new rule.

         As already noted, the Supreme Court and the Fourth Circuit have not yet grappled with the ambiguity of the term "right" in § 2255(f)(3).[15] Nor has any decision of another circuit been found that adequately addresses the issue. The widespread inattention may have a simple explanation; when the Supreme Court announces a new rule made retroactive under the Teague framework, it usually also announces a new right, [16] and therefore, the distinction between a right and rule is not typically material to the application of § 2255(f)(3). Thus, in most instances it is unnecessary to resolve the ambiguity of the scope of the term "right" in § 2255(f)(3).

         Importantly, however, with respect to the Supreme Court's recent decision in Johnson, the distinction between a right and a rule is material to the application of § 2255(f)(3). This is so because as already noted, the right in issue in Johnson was not a new right, but was instead the well-settled prohibition against unconstitutional vagueness in criminal statutes, whereas the application of that right resulted in a newly recognized rule, namely that the ACCA residual clause is unconstitutionally vague. See Johnson 135 S.Ct. at 2556, 2557 ("Our cases establish that the [g]overnment violates [the Due Process Clause] by taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.") (citing Kolender v. Lawson, 461 U.S. 352, 357-58 (1983)).[17] Thus, under a construction of the term "right" in § 2255(f)(3) that distinguishes that term from the term "rule" as used in the Teague framework, the Supreme Court's decision in Johnson did not trigger a new one-year limitations period pursuant to § 2255(f)(3) because that decision simply recognized a new rule, which was made retroactive in Welch, but did not recognize a new right within the meaning of § 2255(f)(3), as the right asserted by the petitioner in Johnson was the well-settled right not to be convicted or sentenced pursuant to an unconstitutionally vague law. In this regard, the Supreme Court's decision in Johnson brings the ambiguity of the term "right" in § 2255(f)(3) to the surface, perhaps for the first time.

         B.

         Of course, there are also compelling reasons not to read "right" and "rule" as taking different meanings in § 2255. As just discussed, the subtle distinction between a right and a rule is cast into sharp relief only because the Supreme Court's decision in Johnson constitutes a retroactive rule that is not rooted in the recognition of a new constitutional right. Indeed, before Welch the Supreme Court had never held that a new constitutional rule based on procedural due process principles constituted a substantive rule for purposes of retroactivity on collateral review. See Br. of Court-Appointed Amicus Curiae at 29, United States v. Welch, No. 15-6418. Thus, it is not implausible to suspect that Congress, when it enacted AEDPA, assumed that every new retroactive rule under Teague would always announce a new right, and thus that the terms "right" and "rule" were essentially congruent.

         Of course, "the passage of time can undermine the premises behind a particular statute in ways that the enacting legislature did not expect." Nelson, supra, at 926-27. Here, Welch makes clear that if Congress enacted § 2255(f)(3) on the premise that every retroactive new rule would also recognize a new right, that premise is no longer intact. When such situations arise, one interpretative approach is to view the formula of words Congress enacted as set in stone and to apply the traditional canons of interpretation to the text of the statute. See id. at 927. Here, this approach, as reflected in the analysis articulated in Part II-A, supra, leads to the conclusion that § 2255(f)(3) categorically does not apply to claims arising under Johnson. An alternative interpretative approach is to "adjust" the understanding of the formula of words enacted so as "best to continue serving the mix of purposes" that Congress was trying to advance at the time of enactment. See id. at 927. Under this latter approach, there are sound reasons to conclude that the term "right" in § 2255(f)(3) should be construed to mean "rule" in the Teague sense.

         For one, this construction avoids an anomalous result that would follow from the construction of § 2255(f)(3) articulated in Part II-A, supra. Specifically, under an interpretation of "right" that distinguishes that term from the term "rule" in the Teague sense, no defendant could bring a § 2255 motion relying on Johnson pursuant to § 2255(f)(3). Such a conclusion, though seemingly consistent with the text of the statute, would be at odds with spirit of the Supreme Court's decision in Welch, which has the effect of enabling prisoners sentenced under the ACCA residual clause before Johnson was decided to bring collateral attacks on their sentences on the basis of Johnson. SeeWelch, 136 S.Ct. at 1268. Indeed, it could be argued that the Supreme Court in Welch rejected by implication a construction of the term "right" that precludes ...


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