United States District Court, E.D. Virginia, Alexandria Division
ELLIS, III United States District Judge.
1998, defendant pled guilty to one count of armed bank
robbery, in violation of 18 U.S.C §§ 2113(a) and
(d), and one count of using a firearm in relation to a
“crime of violence, ” in violation of 18 U.S.C.
§ 924(c). On the § 924(c) count, defendant, as
required by statute, was sentenced to a term of 60
months' imprisonment with that sentence to run
consecutive to defendant's sentence imposed on the armed
bank robbery count. Now, almost two decades later, defendant
has moved pursuant to 28 U.S.C. § 2255 to
vacate and set aside his § 924(c) conviction and
sentence on the ground that the Supreme Court's decision
in Johnson v. United States, 135 S.Ct. 2551 (2015),
operates to invalidate § 924(c)'s residual
clause. The government disagrees, contending that
defendant's motion is barred as untimely and that in any
event, defendant's conviction and sentence are based not
on § 924(c)'s residual clause, but on §
924(c)'s force clause, a provision not addressed by the
Supreme Court's decision in Johnson.
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. Accordingly, the matter is now ripe for
disposition. For the reasons stated below,
defendant's motion must be denied.
to the Statement of Facts to which defendant swore during his
guilty plea, defendant, armed with a shotgun, entered the
First Union Bank in Alexandria, Virginia on the morning of
December 4, 1996. Once inside the bank, defendant approached
a bank employee, pointed the shotgun at her, and demanded
money. The employee complied with defendant's demand by
giving defendant $2, 185, which defendant placed in a bag.
Defendant then fled the bank by car and nine days later was
apprehended at a Maryland hotel.
March 12, 1998, defendant pled guilty to one count of armed
bank robbery, in violation of 18 U.S.C §§ 2113(a)
and (d) (Count 1), and one count of using a firearm during
and in relation to a crime of violence, in violation of 18
U.S.C. § 924(c) (Count 2). On May 29, 1998, 18 U.S.C.
§ 924(c)(3). Subsection (A) and subsection (B) of §
924(c)(3) are commonly referred to as the “force
clause” and the “residual clause, ”
respectively. See United States v. McNeal, 818 F.3d
141, 151-52 (4th Cir. 2015). defendant received a sentence of
235 months' imprisonment on Count 1, and a sentence of 60
months' imprisonment on Count 2, to run consecutive to
the 235-month sentence imposed on Count 1. A month later, the
government's motion to reduce defendant's sentence
pursuant to Rule 35, Fed. R. Crim. P., was granted.
Accordingly, defendant's sentence for Count 1 was reduced
to 120 months. Defendant's § 924(c) sentence, which
was to run consecutive to the sentence imposed for Count 1,
remained in full force and effect.
26, 2015, nearly two decades 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 in §
924(e)(2)(B)(ii) defining a “violent felony” as
including an offense that “otherwise involves conduct
that presents a serious potential risk of physical injury to
another” 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.” 135 S.Ct. 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).
22, 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 conviction pursuant to §
924(c) on the ground that the Supreme Court's decision in
Johnson operates to invalidate this conviction.
Specifically, defendant contends that his conviction for
armed bank robbery, in violation of 18 U.S.C. § 2113,
cannot constitutionally function as a predicate offense for
his § 924(c) conviction. First, in defendant's view,
Johnson's reasoning with respect to the
ACCA's residual clause renders unconstitutional §
924(c)'s residual clause. Second, defendant asserts that
because § 2113 can be violated solely through
intimidation, defendant's armed bank robbery does not
qualify as a crime of violence pursuant to §
924(c)'s force clause, but instead falls under §
924(c)'s residual clause. Finally, defendant argues that
because Johnson operates to invalidate §
924(c)'s residual clause, defendant's § 924(c)
conviction is unconstitutional.
14, 2016, the government filed a response, contending that
defendant's § 2255 motion is barred by the one-year
statute of limitations set forth in 28 U.S.C. § 2255(f).
The government further argued that Fourth Circuit case law
has squarely concluded that a robbery committed through
intimidation, as defined by § 2113, is a crime of
violence under § 924(c)'s force clause; accordingly,
in the government's view, defendant's conviction does
not implicate either the Johnson decision or §
924(c)'s residual clause.
begin with, the government challenges defendant's §
2255 motion as untimely. Specifically, the government asserts
that because defendant filed his § 2255 motion
approximately two decades after his § 924(c) conviction
and sentence became final, his § 2255 motion is barred
by the one-year limitations period set forth in 28 U.S.C.
§ 2255(f)(1). Defendant seeks to avoid this result by
contending that his § 2255 motion is timely because
pursuant to 28 U.S.C. § 2255(f)(3), the one-year
limitations period runs from June 26, 2015, the date
Johnson was decided, and defendant filed his §
2255 motion less than a year later.
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. In this regard, 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, §
2255(f)(3) requires that the new right be recognized by the
Supreme Court itself before a movant may ...