United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendant Tobias Dyer's
("Defendant") Motion to Vacate, Set Aside, or
Correct Sentence under 28 U.S.C. § 2255.
21, 2013, after a five-day trial, a jury found Defendant
guilty on nine counts, including three counts of using a
firearm in relation to a "crime of violence, " in
violation of U.S.C. § 924(c). The three counts of using
a firearm in relation to a crime of violence provide the
basis for Defendant's instant § 2255 motion. These
counts, which are counts six through eight, alleged that the
underlying crime of violence for the § 924 (c) charges
was interference with commerce by robbery, in violation of 18
U.S.C. § 1951 (Hobbs Act robbery). On these three
counts, the Court sentenced Defendant to consecutive
sentences of sixty months on Count Six, three hundred months
on Count Seven, and three hundred months on Count Eight. For
the other six counts, the Court sentenced Defendant to sixty
months on each count with the sentences to run concurrently
with each other.
23, 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 is timely under §
2255(f) (3) because the Supreme Court in Johnson
created a new right. On August 8, 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 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. Teaque v. Lane, 489 U.S.
288, 301 (1989) ("[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, 375-79 (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. Fuertes, the Fourth Circuit declined to decide
§ 924(c)(3)(BJ'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).
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
§ 2255 motion more than one year after his conviction
became final, his motion is untimely. Thus, the