United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendant David Hills's
("Defendant") Motion to Vacate, Set Aside, or
Correct Sentence under 28 U.S.C. § 2255.
August 15, 2001, after a three-day trial, a jury found
Defendant guilty on seven counts. Those counts include one
count of conspiracy to commit bank robbery, in violation of
18 U.S.C. § 371; three counts of armed bank robbery, in
violation of 18 U.S.C. § 2113(a)-(d); and three counts
of using a firearm during a crime of violence, in violation
of 18 U.S.C. § 924(c). The Court sentenced Defendant to
serve three hundred months concurrently on Counts 1, 2, 4,
and 6; eighty-four months to run consecutively on Count 3;
and three hundred months to run consecutively on Counts 5 and
7. Defendant's § 2255 motion relates to his
convictions for using a firearm during a crime of violence.
21, 2016, Defendant moved to vacate three of his convictions
pursuant to 28 U.S.C. § 2255, arguing that his
convictions under § 924(c) violate due process based on
Johnson v. United States, 135 S.Ct. 2551 (2015).
Defendant argues that his motion to vacate these convictions
is timely under § 2255(f) (3) because the Supreme Court
in Johnson created a new right. In the same motion,
Defendant also argues that the sentence enhancement he
received under the residual clause of the Sentencing
Guidelines violates due process because the residual clause
is unconstitutionally vague. Defendant argues that his
challenge to his sentence is timely under § 2255(h)(2).
Defendant has also filed several motions to amend his §
2255 Petition. On July 21, 2016, the Government filed a
motion to dismiss Defendant's § 2255 motion as
28 U.S.C. § 2255, a person may attack his sentence or
conviction on the grounds that it was imposed in violation of
the Constitution or laws of the United States, that the court
was without jurisdiction to impose such a sentence, that the
sentence exceeded the maximum authorized by law, or that the
sentence otherwise is subject to collateral attack. 28 U.S.C.
§ 2255; see also Hill v. United States, 368
U.S. 424, 426-27 (1962). The party seeking relief bears the
burden of proving his grounds for collateral relief by a
preponderance of the evidence. Vanater v. Boles, 377
F.2d 898, 900 (4th Cir. 1967).
motion challenging his conviction is untimely, despite his
argument that his motion qualifies under § 2255(f)(3)
after the decision in Johnson. Under §
2255(f)(3), a motion must be filed within one year of
"the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review." In
Johnson/ the Supreme Court held that
imposing an increased sentence for "crimes of
violence" under the residual clause of the Armed Career
Criminal Act ("ACCA") was unconstitutionally vague
and violated the Due Process Clause. 135 S.Ct - at 2563. The
Supreme Court in Welch v. United States, 136 S.Ct.
1257 (2016), held that Johnson's invalidation of
the ACCA's residual clause has a retroactive effect to
cases on collateral review. Id. at 1265.
motion filed pursuant to § 2255(f)(3), the Supreme Court
itself must recognize the specific substantive right at
issue. The Supreme Court has not held that Johnson
applies to § 924(c)(3)(B), and "[s]ection
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."
United States v. Mathur, 685 F.3d 396, 401 (4th Cir.
2012). Unless the Supreme Court itself recognizes a
"new" right, § 2255(f) (3) is not a valid
ground for filing a motion more than one year after the
conviction was final.
announces a "new" right if a later extension of an
earlier case was dictated by precedent and was apparent to
all reasonable jurists. Teague v. Lane, 489 U.S.
288, 301 (198 9) ("[A] case announces a new rule if the
result was not dictated by precedent existing at the time the
defendant's conviction became final . . ."); see
also Chaidez v. United States, 133 S.Ct. 1103, 1107
(2013) (A rule is "not so dictated . . . unless it would
have been 'apparent to all reasonable jurists'")
(citing Lambrix v. Singletary, 520 U.S. 518, 527-28
(1997)). The requirement that an extension be apparent to
"all reasonable jurists" is a demanding one.
mounting a Johnson challenge to § 924(c)(3)(B),
the Defendant cannot maintain that it is apparent to all
reasonable jurists that Johnson invalidates §
924(c)(3)(B) and created a new substantive right under that
provision. Notably, the only circuits to address this precise
question have rejected the argument made by Defendant.
See United States v. Prickett, 839 F.3d 697, 700
(8th Cir. 2016); United States v. Taylor, 814 F.3d
340, 375-7 9 (6th Cir. 2016) (distinguishing the ACCA
residual clause from the clause in § 924(c)(3)(B)).
the Fourth Circuit has not treated Johnson as having
dictated to all reasonable jurists that § 924(c) (3) (B)
is unconstitutionally vague. To the contrary, in United
States v. Fuertesf the Fourth Circuit
declined to decide § 924(c)(3)(B)'s
constitutionality and noted that in Johnson
"the Supreme Court held unconstitutionally vague the
version of the residual clause set forth in 18 U.S.C. §
924 (e) (2) (B), but the Court had no occasion to review the
version of the residual clause set forth at 18 U.S.C. §
924(c)(3)(B)." 805 F.3d 485, 499 n.5 (4th Cir. 2015).
The above authority shows that Defendant's motion is
untimely because Johnson did not invalidate §
924(c)(3)(B), and Johnson did not create the new
right that Defendant asserts was created. Because
Johnson did not create a new right and Defendant is
filing the instant challenge to his convictions under §
924(c) more than one year after his conviction became final,
his argument is untimely.
the Court turns to Defendant's challenge to his sentence
enhancement under the residual clause of the Sentencing
Guidelines. In Beckies v. United States, the Supreme
Court held that the residual clause of the Sentencing
Guidelines was not void for vagueness. 137 S.Ct. 886, 8 97
(2017) ("§ 481.2(a) *S residual clause is not void
for vagueness. . . ."). Accordingly, the Supreme
Court's holding in Johnson does not apply to the
Sentencing Guidelines, and Defendant's challenge to his
sentence based on § 4B1.2(a) is without merit.
Defendant's challenge to his conviction is untimely, and
his challenge to his sentence enhancement is without merit.
Thus, Defendant's § 2255 Motion to Vacate, Set
Aside, or Correct Sentence is DENIED. Furthermore,
Defendant's various Motions to Amend (ECF #297, ECF #303,
ECF #304, ECF #30 9) are DENIED because these are successive
§ 2255 motions unrelated to Johnson, and the
Fourth Circuit only ...