United States District Court, E.D. Virginia, Alexandria Division
C. Cacheris UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on Petitioner Carlic Darnell
Brown's (“Petitioner” or “Brown”)
Section 2255 Motion to Vacate or Set Aside Criminal Judgment.
[Dkt. 77.] For the reasons set forth below, the Court will
deny Petitioner's motion.
3, 2009, Brown pled guilty to two counts 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. 25]. The underlying “crime of
violence” involved interference with commerce by
robbery, in violation of 18 U.S.C. § 1951 (Hobbs Act
robbery). Pet. Mot. at 2. On August 28, 2009, this Court
sentenced Brown to 384 months, followed by a five-year term
of supervised release. [Dkt. 56.] Brown did not appeal his
conviction. His sentence was later reduced to 200 months
pursuant to a Rule 35(b) motion. [Dkt. 70.]
28, 2016, Brown petitioned to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255 [Dkt. 77] 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).
The next day, Brown filed a Motion to Allow Late Filing [Dkt.
78], which the Court granted [Dkt. 80]. On May 8, 2017, the
Government filed a motion to dismiss the § 2255
petition. [Dkt. 95.] Brown replied on May 15, 2017. [Dkt.
82.] This § 2255 petition is now ripe for disposition.
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 Brown'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 [Dkt. 95] at 3. The Court entered
judgment in this case on August 28, 2009. [Dkt. 56.] Because
Petitioner did not appeal his conviction, it became final on
August 28, 2010. Petitioner did not file the instant petition
until June 28, 2016. [Dkt. 77.] Thus, the petition is
untimely under § 2255(f)(1), as it was filed nearly six
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 failed to meet
the filing deadline [Dkt. 77], the Court granted him
permission to file one day late [Dkt. 80]. Even with the
Court's permission for this late filing, however, the
Government is nevertheless 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.
majority of circuits to address whether Johnson
invalidates § 924(c)(3)(B) thus far have rejected
Petitioner's arguments. See United States v.
Prickett, 839 F.3d 697, 699-700 (8th Cir. 2016) (per
curiam) (on rehearing) (holding that § 924(c) does not
encompass risks after the offense elements are satisfied,
does not include the confusing list of enumerated offenses
present in the ACCA, and does not have the ACCA's
“fraught” history of interpretive failures that
caused confusion and disagreement among federal courts);
United States v. Hill, 832 F.3d 135, 147 (2d Cir.
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)]”). But see United
States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016).
the Fourth Circuit, sitting en banc, 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)