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Derr v. United States

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

February 9, 2017

DESHAWN EDWARD DERR, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          JAMES C. CACHERIS UNITED STATES DISTRICT COURT JUDGE

         This matter is before the Court on Petitioner Deshawn Edward Derr's (“Petitioner” or “Derr”) Section 2255 Motion to Vacate or Set Aside Criminal Judgment. [Dkt. 63.] This matter is also before the Court on Petitioner's Motion to Appoint Counsel [Dkt. 62] and Motion to Cure Proceeding [Dkt. 71], the latter of which the Court construes as a motion to amend. For the reasons set forth below, the Court will deny Petitioner's § 2255 motion. The Court will also deny his motion to appoint counsel and his motion to amend.

         I. Background

         On November 16, 2011, Derr pled guilty to one count of conspiracy to affect commerce by robbery (“Hobbs Act robbery”), in violation of 18 U.S.C. § 1951(a), and 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. 20]. Count 1, conspiracy to commit a Hobbs Act robbery, served as the underlying “crime of violence” for Count 2. On February 3, 2012, this Court sentenced Derr to 130 months' imprisonment, followed by a five-year term of supervised release. [Dkt. 33.] Derr did not timely appeal and his request for leave to file a late appeal was denied. [Dkt. 45.]

         On June 14, 2016, Derr petitioned to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Dkt. 63] 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 June 30, 2016, the Government filed a motion to dismiss the § 2255 petition. [Dkt. 68.] Derr replied on July 15, 2016. [Dkt. 70.] This § 2255 petition is now ripe for disposition.

         II. Analysis

         A. Petitioner's § 2255 Motion

         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”), 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).

         In its motion to dismiss, the Government argues that Derr'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. Mot. to Dismiss at 2. The Court entered judgment in this case on February 3, 2012. [Dkt. 33.] Because Petitioner did not file a timely appeal, his conviction became final on February 3, 2013. Petitioner did not file the instant petition until June 14, 2016. [Dkt. 64.] Thus, the petition would be considered untimely under § 2255(f)(1), as it was filed more than three years after Petitioner's conviction became final.

         The 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.[1] Although Petitioner met the filing deadline, [Dkt. 63], the Government is correct that his petition is untimely, as the newly recognized right in Johnson does not apply to Petitioner's case.

         “[A] 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.

         The only circuits to address whether Johnson invalidates § 924(c)(3)(B) thus far have rejected Petitioner'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) in a second case, 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).

         For a 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) ...


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