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Jasper v. United States

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

February 2, 2017

ANTHONY VIRGIL JASPER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          JAMES C. CACHERIS UNITED STATES DISTRICT COURT JUDGE.

         This 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.

         I. Background

         On May 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).[1]

         On 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' supervision. [Id.]

         On June 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.

         On 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.

         II. Standard of Review

         Under 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).

         Under 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).

         III. Analysis

         A. Petitioner's U.S.S.G. § 4B1.2 Claim

         In his § 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, Petitioner states:

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 ...

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