United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Petitioner Dominicke Antoine
Triggs's ("Petitioner") Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255.
April 6, 2004, after a two-day jury trial, Petitioner was
found guilty of conspiracy, in violation of 18 U.S.C. §
371; carjacking, in violation of 18 U.S.C. § 2119; using
a firearm in relation to a "crime of violence, " in
violation of 18 U.S.C. § 924 (c) (Counts Three and Six);
kidnapping, in violation of 18 U.S.C. § 1201; and being
a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g). On June 25, 2004, Petitioner was sentenced to
524 total months of imprisonment, including consecutive
sentences of 84 months on Count Three and 300 months on Count
Six. Counts Three and Six are at issue in the instant motion.
§ 2255 motion before the Court, Petitioner argues that
his conviction for Counts Three and Six should be set aside
based on Johnson v. United States, 135 S.Ct. 2551
(2015), because the underlying "crime of violence"
in both counts does not qualify as a crime of violence
post-Johnson. The underlying crime of violence for
Count Three was carjacking and conspiracy to do the same
while the underlying crime of violence for Count Six was
carjacking and kidnapping. Petitioner argues that the
underlying crimes cannot qualify as crimes of violence
because the residual clause of § 924(c) is materially
indistinguishable from the residual clause in the Armed
Career Criminal Act that the Supreme Court struck down in
Johnson as unconstitutional.
filed the instant motion on June 23, 2016, which is within
one year of Johnson. He argues that his motion is
timely under § 2255(f) (3) because Johnson
created a new right, and that new right was made
retroactively applicable to cases on collateral review in
Welch v. United States, 136 S.Ct. 1257, 1268 (2016).
On August 8, 2016, the United States 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" 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, 499 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 ...