United States District Court, E.D. Virginia, Alexandria Division
M. HILTON, UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Petitioner Terrence
Kerney's ("Petitioner") Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255.
December 7, 2011, Petitioner pled guilty to conspiracy to
commit robbery in violation of 18 U.S.C. § 1951 (Count
One), using a firearm during and in relation to a "crime
of violence" in violation of § 924(c) (1) (A) (ii)
(Count Three), and being a felon in possession of a firearm
in violation of § 922(g) (Count Four). The Court
sentenced Petitioner to concurrent sentences of thirty months
for Count One and Count Four. The Court sentenced Petitioner
to a consecutive sentence of sixty months on Count Three.
Petitioner's § 2255 motion relates to his sentence
for Count Three (using a firearm during and in relation to a
crime of violence in violation of § 922(g)).
2, 2016, Petitioner filed the instant § 2255 motion,
arguing that he is entitled to relief because his conviction
under § 924(c) violates due process based on Johnson
v. United States, 135 S.Ct. 2551 (2015). Petitioner
argues that his motion is timely under § 2255(f)(3)
because the Supreme Court in Johnson created a new
right. On July 27, 2016, the Government filed a motion to
dismiss Petitioner's § 2255 motion as untimely.
28 U.S.C. § 2255, a petitioner may attack his sentence
or conviction on the grounds that it was imposed in violation
of the Constitution or laws of the United States, that the
court was without jurisdiction to impose such a sentence,
that the sentence exceeded the maximum authorized by law, or
that the sentence otherwise is subject to collateral attack.
28 U.S.C. § 2255; see also Hill v. United
States, 368 U.S. 424, 426-27 (1962). The petitioner
bears the burden of proving his grounds for collateral relief
by a preponderance of the evidence. Vanater v.
Boles, 377 F.2d 898, 900 (4th Cir. 1967).
motion is untimely, despite his argument that his motion
qualifies under § 2255(f)(3) after the decision in
Johnson. Under § 2255(f) (3), a motion must be
filed within one year of "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." In Johnson, the Supreme Court held
that imposing an increased sentence for "crimes of
violence" under the residual clause of the Armed Career
Criminal Act ("ACCA") was unconstitutionally vague
and violated the Due Process Clause. 135 S.Ct. at 2563. The
Supreme Court in Welch v. United States, 136 S.Ct.
1257 (2016), held that Johnson's invalidation of
the ACCA's residual clause has a retroactive effect to
cases on collateral review. Id. at 1265.
motion filed pursuant to § 2255(f)(3), the Supreme Court
itself must recognize the specific substantive right at
issue. The Supreme Court has not held that Johnson
applies to § 924(c)(3)(B), and "[s]ection
2255(f)(3) does not authorize [a lower court] to read between
the lines of a prior opinion [by the Supreme Court] to
discern whether that opinion, by implication, made a new rule
retroactively applicable on collateral review."
United States v. Mathur, 685 F.3d 396, 401 (4th Cir.
2012). Unless the Supreme Court itself recognizes a
"new" right, § 2255(f)(3) is not a valid
ground for filing a motion more than one year after the
conviction was final.
announces a "new" right if a later extension of an
earlier case was dictated by precedent and was apparent to
all reasonable jurists. See, e.g., Chaidez v.
United States, 133 S.Ct. 1103, 1107 (2013) ("[A]
case announces a new rule if the result was not dictated by
precedent existing at the time, " and a rule is
"not so dictated . . . unless it would have been
'apparent to all reasonable jurists'") (citing
Lambrix v. Singletary, 520 U.S. 518, 527-28 (1997)).
The requirement that an extension be apparent to "all
reasonable jurists'7 is a demanding one.
mounting a Johnson challenge to § 924(c)(3)(B),
the Petitioner cannot maintain that it is apparent to all
reasonable jurists that Johnson invalidates §
924(c)(3)(B) and created a new substantive right under that
provision. Notably, the only circuit to address this precise
question has rejected the argument made by Petitioner.
United States v. Taylor, 814 F.3d 340, 375-79 (6th
Cir. 2016) (distinguishing the ACCA residual clause from the
clause in § 924(c)(3)(B)).
the Fourth Circuit has not treated Johnson as having
dictated to all reasonable jurists that § 924(c)(3)(B)
is unconstitutionally vague. To the contrary, in United
States v. Fuertes, the Fourth Circuit declined to decide
§ 924(c) (3) (B)'s constitutionality and noted that
in Johnson "the Supreme Court held
unconstitutionally vague the version of the residual clause
set forth in 18 U.S.C. § 924(e)(2)(B), but the Court had
no occasion to review the version of the residual clause set
forth at 18 U.S.C. § 924(c)(3)(B)." 805 F.3d 485, 4
99 n.5 (4th Cir. 2015).
above authority shows that Petitioner's motion is
untimely because Johnson did not invalidate §
924(c)(3)(B), and Johnson did not create the new
right that Petitioner asserts was created. Because
Johnson did not create a new right and Petitioner is
filing the instant § 2255 motion more than one year
after his conviction became final, his motion is untimely.
Thus, the ...