United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
Speight, a federal inmate proceeding pro se,
submitted this successive motion under 28 U.S.C. § 2255
to vacate, set aside, or correct his sentence ("§
2255 Motion, " ECF No. 16). Speight argues that in light
of the Supreme Court's ruling in Johnson v. United
States, 135 S.Ct. 2551 (2015), his convictions pursuant
to 18 U.S.C. § 924(c) are unconstitutional.
(Id. at 5.) The Government has responded. (ECF No.
21.) Speight has replied. (ECF No. 22.) For the reasons set
forth below, the Court will deny Speight's § 2255
Motion as barred by 28 U.S.C. § 2255(h)(2).
December 4, 1990, a grand jury charged Speight with one count
of conspiracy to commit armed bank robbery, in violation of
18 U.S.C. § 371 (Count One); two counts of armed bank
robbery, in violation of 18 U.S.C. § 2113(a) & (d)
(Counts Two and Four); and two counts of use of a firearm
during a felony, in violation of 18 U.S.C. § 924(c)(1)
(Counts Three and Five). (Indictment 1-7, ECF No. 1.) On
March 26, 1991, a jury found Speight guilty of all five
charges. (ECF No. 47, at 1.) On May 31, 1991, the Court
entered judgment against Speight and sentenced him to the
SIXTY (60) MONTHS on Count One; ONE HUNDRED TEN (110) MONTHS
on each of Counts Two and Four, to run concurrently with
Count One and consecutively to Counts Three and Five; SIXTY
(60) MONTHS on Count Three, to run consecutively to Counts
One, Two, and Four; and TWO HUNDRED FORTY (240) MONTHS on
Count Five, to run consecutively to Counts One, Two, Three,
(J. 2, ECF No. 62.) On August 18, 1992, the United States
Court of Appeals for the Fourth Circuit affirmed
Speight's convictions and sentence. United States v.
Speight, Nos. 91-5583, 91-5584, 1992 WL 198089, at *4
(4th Cir. Aug. 18, 1992).
April 27, 1993, Speight filed a motion to vacate, set aside,
or correct his sentence pursuant to 28 U.S.C. § 2255.
(ECF No. 79.) By Memorandum Opinion and Order entered on
March 4, 1994, the Court denied Speight's § 2255
motion. (See ECF Nos. 108, 109.)
22, 2013, Speight filed a Motion for Re-Sentencing. (ECF No.
By Memorandum Order entered on November 18, 2014, the Court
construed Speight's Motion to be a motion pursuant to 28
U.S.C. § 2255. (ECF No. 11, at 2.) The Court concluded
that it lacked jurisdiction to consider the Motion because it
was an unauthorized second or successive § 2255 motion.
(Id. at 3.)
Speight sought permission from the Fourth Circuit to file a
successive § 2255 motion based upon the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015). On June 29, 2016, the Fourth Circuit
granted Speight authorization to file this successive §
2255 motion. (See ECF No. 18, at 1.)
Speight Fails To Satisfy The Standard For Successive §
Fourth Circuit granted Speight pre-filing authorization to
file a successive motion in this Court pursuant to 28 U.S.C.
§ 2255(h)(2). Under § 2255(h)(2), Speight must
demonstrate that his claim is based upon "a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable." 28 U.S.C. § 2255(h)(2). In his §
2255 Motion, Speight raises entitlement to relief based upon
the following claim:
Claim One: "In light of Johnson v. United
States, [135 S.Ct. 2551 (2015), ] my convictions for my
[§] 924(c) are now unconstitutional." (§ 2255
Fourth Circuit's determination that Speight satisfies
§ 2255(h) "is * tentative in the following sense:
the district court must dismiss the motion that [the Fourth
Circuit has] allowed the applicant to file, without reaching
the merits of the motion, if the court finds that the movant
has not satisfied the requirements for the filing of such a
motion.'" McLeod v. Peguese, 337 Fed.Appx.
316, 324 (4th Cir. 2009) (quoting Bennett v. United
States, 119 F.3d 468, 470 (7th Cir. 1997)). Thus, it is
necessary to examine Speight's claim and dismiss it, if
the Court finds that it is barred under ...