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United States v. Willis

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

September 20, 2016

UNITED STATES OF AMERICA
v.
NORMAN RAY WILLIS Civil Action No. 1:16-cv-815

          MEMORANDUM OPINION

          T.S. ELLIS, III United States District Judge.

         In 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.[1] Now, almost two decades later, defendant has moved[2] 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.[3] 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.

         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.[4] Accordingly, the matter is now ripe for disposition.[5] For the reasons stated below, defendant's motion must be denied.

         I.

         According 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.

         On 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.

         On June 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).

         On June 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.

         On July 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.

         II.

         To 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.

         Section 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.[6] 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 ...


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