United States District Court, E.D. Virginia, Alexandria Division
C. CACHERIS UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on pro se Petitioner
Anthony Virgil Jasper's (“Petitioner” or
“Jasper”) Section 2255 Motion to Correct
Sentence. [Dkt. 104.] For the reasons set forth below, the
Court will hold Petitioner's first claim in abeyance,
pending the Supreme Court's ruling in Beckles v.
United States, ___ S.Ct. ___, 2016 WL 1029080 (June 27,
2016) (granting certiorari to address whether
Johnson applies to the residual clause in U.S.S.G.
§ 4B1.2(a)(2) and applies retroactively on collateral
review). The Court will also deny Petitioner's second
claim as untimely.
17, 2000, Jasper was convicted by a jury of five counts,
including: (1) conspiracy to interfere with commerce by
committing robbery, in violation of 18 U.S.C. § 1951;
(2) interference with commerce, in violation of 18 U.S.C.
§ 1951; (3) using a firearm during and in relation to a
“crime of violence, ” in violation of 18 U.S.C.
§ 924(c); (4) transporting firearms as a convicted
felon, in violation of 18 U.S.C. § 922(g); and (5)
conspiracy to possess a controlled substance, in violation of
21 U.S.C. §§ 844, 846. [Dkt. 59.] According to
Petitioner, the underlying “crime[s] of violence”
involved a 1971 robbery conviction, a 1979 assault and
battery conviction, a 1982 assault conviction, a 1987 robbery
with a firearm conviction, a 1993 abduction with a firearm
conviction, and a 1997 distribution of cocaine conviction.
In re Anthony Jasper, No. 15-0333, Dkt. 2-4 at 3
(4th Cir. Oct. 20, 2015).
August 18, 2000, the Court sentenced Jasper to two life terms
on Counts 1 and 2, plus 84 months' imprisonment on Count
3, to run consecutively. [Dkt. 63.] The Court also sentenced
Jasper to 144 months' imprisonment for Counts 4 and 5, to
be served concurrently with Counts 1-3. [Id.]
Finally, the Court imposed several concurrent terms of
supervised release, which ultimately require five years'
24, 2016, Jasper filed a successive petition to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255 [Dkt. 104] 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). Petitioner's motion asserts two
Johnson claims. First, Petitioner argues that one or
more of his prior convictions no longer qualifies as a
“crime of violence” in light of Johnson.
Pet. at 4. Because these convictions were included in
calculating his criminal history score, Petitioner asserts
that his 84-month sentence for Count 3 is now
unconstitutional. Id. Second, Petitioner claims that
Johnson should be applied to invalidate two
additional sections of the United States Sentencing
Guidelines, § 2B3.2 and § 2K2.1, that were used in
his case. Id. at 5.
August 24, 2016, the Government filed a motion to dismiss
Petitioner's § 2255 motion. [Dkt. 110.] Jasper filed
his opposition on September 14, 2016, asserting additional
arguments about the vagueness of 18 U.S.C. § 3559(c).
[Dkt. 111.] The Government did not reply. This § 2255
petition is now ripe for disposition.
Standard of Review
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”), however, 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).
Petitioner's U.S.S.G. § 4B1.2 Claim
§ 2255 motion, Jasper first argues that his “prior
convictions do not qualify for purposes of guidelines
enhancement.” Pet. at 4. In support of this argument,
Pursuant to the S.Ct's Johnson decision, Mr. Jasper's
prior convictions do not qualify for use as predicates for
purposes of career offender enhancement because of the