United States District Court, E.D. Virginia, Alexandria Division
C. CACHERIS UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on Petitioner Hector Antonio
Martinez-Guillen's (“Petitioner” or
“Martinez-Guillen”) Section 2255 Motion to Vacate
or Set Aside Criminal Judgment. [Dkt. 64.] For the reasons
set forth below, the Court will deny Petitioner's motion.
12, 2011, Martinez-Guillen pled guilty to one count of using
a firearm during and in relation to a “crime of
violence, ” in violation of 18 U.S.C. § 924(c).
(See Plea Agreement [Dkt. 47.].) The underlying
“crime of violence” involved providing material
support to a designated foreign terrorist oreganization, in
violation of 18 U.S.C. § 2339B. (Pet. Mem. in Supp. at
1.) On August 5, 2011, this Court sentenced Martinez-Guillen
to 31 years' imprisonment, followed by a five-year term
of supervised release. [Dkt. 62.] Martinez-Guillen did not
2, 2016, Martinez-Guillen petitioned to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255 [Dkt.
64] in light of the United States Supreme Court's recent
holding that the residual clause of the Armed Career Criminal
Act of 1984 (“ACCA”), 18 U.S.C. §
924(e)(2)(B)(ii), is unconstitutionally vague. See
Johnson v. United States, 135 S.Ct. 2551 (2015); see
also Welch v. United States, 136 S.Ct. 1257 (2016)
(holding that Johnson applies retroactively on
collateral review). On July 27, 2016, the Government filed a
motion to dismiss the § 2255 petition. [Dkt. 70.]
Martinez-Guillen replied on July 29, 2016 [Dkt. 71], to which
the Government submitted an additional reply on August 4,
2016 [Dkt. 72}. This § 2255 petition is now ripe for
28 U.S.C. § 2255, a prisoner in federal custody may
collaterally attack his sentence on four grounds: (1) the
sentence was imposed in violation of the Constitution or the
laws of the United States; (2) the court was without
jurisdiction to impose the sentence; (3) the sentence was in
excess of the maximum authorized by law; or (4) the sentence
is otherwise subject to collateral attack. See Hill v.
United States, 368 U.S. 424, 426-27 (1962). The
petitioner bears the burden of proof by a preponderance of
the evidence. Miller v. United States, 261 F.2d 546,
547 (4th Cir. 1958).
the Antiterrorism and Effective Death Penalty of 1996
(“AEDPA”), a federal district court must dismiss
any § 2255 motion that is filed more than one year after
the date on which: (1) the judgment of conviction becomes
final; (2) the impediment to making a motion, created by
unlawful governmental action, is removed and the petitioner
was prevented from making a motion by such action; (3) the
United States Supreme Court initially recognized the
constitutional right asserted, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or (4) the facts
supporting the claims presented could have been discovered
with due diligence. 28 U.S.C. § 2255(f). A petitioner
must demonstrate that the petition was timely filed under
§ 2255 or that his untimely petition may be salvaged by
equitable tolling principles. See Holland v.
Florida, 130 S.Ct. 2549, 2562 (2010) (confirming that
equitable tolling applied to AEDPA's statute of
limitations); United States v. Terrell, 405
F.App'x 731, 732 (4th Cir. 2010) (applying the holding in
Holland to § 2255 motions).
motion to dismiss, the Government argues that
Martinez-Guillen's § 2255 petition is untimely.
Initially, the Government argues that Petitioner's motion
was filed more than one year from the date on which the
judgment of conviction became final. (Mem. in Supp. of Mot.
to Dismiss at 1.) The Court entered judgment in this case on
August 5, 2011. [Dkt. 62.] Petitioner did not appeal his
conviction, so his conviction became final on August 5, 2012.
Petitioner did not file the instant petition until June 2,
2016. [Dkt. 64.] Thus, the petition is untimely under §
2255(f)(1), as it was filed nearly four years after
Petitioner's conviction became final.
Government also argues that Petitioner's motion should
not be considered timely under § 2255(f)(3), as the new
right recognized by Johnson and made retroactive by
Welch does not apply to Petitioner's case. The
United States Supreme Court issued its decision in
Johnson, striking the Residual Clause of the ACCA as
unconstitutionally vague, on June 26, 2015. 135 S.Ct. at
2563. Less than a year later, the Supreme Court made clear in
Welch that the ruling in Johnson applies
retroactively. 136 S.Ct. at 1268. Petitioner had one year
from the date of Johnson to file a § 2255
petition: June 27, 2016. Although Petitioner met the filing
deadline, [Dkt. 64], the Government is correct that his
petition is untimely, as the newly recognized right in
Johnson does not apply to Petitioner's case.
case announces a new rule when it breaks new ground or
imposes a new obligation” on the government. Teague
v. Lane, 489 U.S. 288, 301 (1989) (internal citations
omitted). “To put it differently, a case announces a
new rule if the result was not dictated by precedent
existing at the time the defendant's conviction became
final.” Id. (internal citations omitted). A
holding is only dictated by existing precedent if it would
have been “apparent to all reasonable jurists.”
Lambrix v. Singletary, 520 U.S. 518, 527-528 (1997).
Johnson's application to § 924(c)(3)(B) is
not apparent here.
only circuits to address whether Johnson invalidates
§ 924(c)(3)(B) thus far have rejected Plaintiff's
arguments. See United States v. Hill, 2016 WL
4120667, at *8 (2d Cir. Aug. 3, 2016) (holding that
Johnson is inapplicable to the residual clause of
§ 924 because “Section 924(c)(3)(B) does not
involve the double-layered uncertainty present in
Johnson”); United States v. Taylor,
814 F.3d 340, 375-79 (6th Cir. 2016) (holding that
Johnson did not render the residual clause of §
924(c) unconstitutionally vague because that clause “is
considerably narrower than the statute invalidated . . . in
Johnson, and because much of Johnson's
analysis does not apply to [the residual clause of §
924(c)]”). The Fourth Circuit, sitting en banc, also
held that, on direct appeal, a defendant failed to show that
it is “plain” that Johnson invalidates
§ 924(c)(3)(B). United States v. Graham, 2016
WL 3068018, at *1 n.1 (4th Cir. May 31, 2016). In addition,
the Fourth Circuit declined to address the constitutionality
of § 924(c)(3)(B), noting that the United States Supreme
Court had no occasion to review that provision when deciding
Johnson. United States v. Fuertes, 805 F.3d
485, 499 n.5 (4th Cir. 2015).
motion filed pursuant to § 2255(f)(3), “the
Supreme Court itself must recognize the specific substantive
right at issue.” United States v. Kerney, 2016
WL 6093486, at *2 (E.D. Va. Oct. 18, 2016). Section
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.”
Kerney, 2016 WL 6093486, at *1 (citing United
States v. Mathur, 685 F.3d 396, 401 (4th Cir. 2012)
(internal quotations omitted)). This Court declines to read
between the lines of Johnson today to invalidate 18
U.S.C. § 924(c)(3)(B) as unconstitutionally vague.
the new rule announced in Johnson does not yet apply
to Petitioner's case, § 2255(f)(3) does not apply
either. Thus, the Court will deny ...