Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tyndall v. United States

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

October 4, 2016

RICKY LEE TYNDALL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM DISMISSAL ORDER

          REBECCA BEACH SMITH CHIEF JUDGE

         This matter comes before the court on the Petitioner's "Motion to Vacate Conviction Under 28 U.S.C. § 2255" ("§ 2255 Motion"), filed by counsel on June 15, 2016. ECF No. 191.

         On June 29, 2016, the court ordered the government to file responsive pleadings to the Petitioner's § 2255 Motion within sixty (60) days of the entry date of that order. ECF No. 195. On August 29, 2016, the United States filed a "Motion to Dismiss § 2255 Petition" ("Motion to Dismiss"), which asserted that the Petitioner's § 2255 Motion is untimely under 28 U.S.C. § 2255(f), and that his claim under Johnson v. United States, 135 S.Ct. 2551 (2015), lacks merit. ECF No. 204. On September 9, 2016, the Petitioner, by counsel, filed the "Petitioner's Response to Government's Motion to Dismiss" ("Response"), which includes a request to hold this proceeding in abeyance. ECF No. 205.

         For the reasons below, the Petitioner's Response, requesting a stay of this proceeding, is DENIED; the government's Motion to Dismiss is GRANTED; and the Petitioner's § 22 55 Motion is DISMISSED.

         I. PROCEDURAL HISTORY

         On March 8, 2011, the Petitioner pled guilty to Counts Two, Three, and Five of the thirteen-count Superseding Indictment. Count Two charged him with Interference with Commerce by Means of Robbery, in violation of 18 U.S.C. §§ 1951(a) and 2; and Counts Three and Five charged him with Use of a Short-barreled Shotgun During a Crime of Violence, in violation of 18 U.S.C. §§ 924(c)(1)(A), (B)(i) and 2. ECF No. 26. On June 14, 2011, the court sentenced the Petitioner to a total term of four hundred twenty-six (426) months imprisonment. ECF No. 87. The Petitioner appealed, and the Court of Appeals for the Fourth Circuit affirmed the convictions and sentence on October 12, 2012. ECF Nos. 120, 121. The Petitioner did not file a petition for a writ of certiorari from the United States Supreme Court.

         The Petitioner has previously filed four habeas corpus petitions pursuant to 28 U.S.C. § 2255, ECF Nos. 125, 137, 165, 186, and one motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, ECF No. 176, all of which the court has denied. See ECF Nos. 126, 148, 166, 180, 188. On June 15, 2016, the Fourth Circuit issued an Order granting authorization to the Petitioner to file the instant § 2255 Motion. ECF No. 190.

         II. DISCUSSION

         A. The Petitioner's Abeyance Request

         The Petitioner requests that the § 2255 proceeding be held in abeyance pending a decision from the United States Court of Appeals for the Fourth Circuit as to whether Interference with Commerce by Robbery ("Hobbs Act robbery"), in violation of 18 U.S.C. §§ 1951(a) and 2, is a crime of violence under 18 U.S.C. § 924(c)(3). Resp. at 1. A decision from the Fourth Circuit will not result in the relief the Petitioner seeks, even should the Fourth Circuit determine that Hobbs Act robbery is not a crime of violence: Only the Supreme Court can determine whether the residual clause in § 924(c)(3) is unconstitutionally vague, see 28 U.S.C. § 2255(f)(3); Dodd v. United States, 545 U.S. 353, 357 (2005), and only the Supreme Court can determine whether this new rule of constitutional law is retroactively applicable on collateral review, see 28 U.S.C. § 2244(b)(2)(A); Tyler v. Cain, 533 U.S. 656, 662 (2001).[1] Accordingly, the court finds no reason to stay the proceeding in anticipation of a decision from the Fourth Circuit on the issue of whether Hobbs Act robbery is classified as a crime of violence, and the request to hold this proceeding in abeyance is DENIED.

         B. The Petitioner's § 2255 Motion and the Government1s Motion to Dismiss

         The instant § 2255 Motion is untimely. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, § 105, 110 Stat. 1214 (1996), imposes a one-year statute of limitations on § 2255 motions. Section 2255, as amended by AEDPA, provides in relevant part:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.