United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING MOTIONS TO AMEND AND
GRANTING MOTION TO DISMISS)
E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE.
McClammy, a federal inmate proceeding pro se,
submitted this motion under 28 U.S.C. § 2255 to vacate,
set aside, or correct his sentence ("§ 2255
Motion," ECF No. 33). By Memorandum Opinion and Order entered
on September 16, 2016, the Court denied McClammy's §
2255 Motion, dismissed Claims One, Two, and Three contained
therein, and took several motions under advisement. (ECF Nos.
48, 49.) No. final order has been entered in the action.
the Court now are McClammy's pro se Motion to
Amend and Supplement the Record Pursuant to Fed.R.Civ.P. Rule
15(c) ("Pro se Motion to Amend," ECF No. 43), and
two motions filed by counsel on his behalf: a Motion for
Leave to File Amended Motion to Vacate Conviction Under 28
U.S.C. § 2255 ("Motion to Amend," ECF No. 42),
and a Motion for Leave to File Statement of Movant in Support
of Amended Motion to Vacate Conviction Under 28 U.S.C. §
2255 ("Motion for Leave to File," ECF No. 44). The
Government has filed a Motion to Dismiss (ECF No. 45) that
addresses McClammy's motions. For the reasons set forth
below, McClammy's various motions will be denied as
futile. The Government's Motion to Dismiss will be
October 16, 2013, a Criminal Complaint was filed, charging
McClammy with one count of bank robbery, in violation of 18
U.S.C. § 2113(a), and one count of brandishing a firearm
during the commission of a felony, in violation of 18 U.S.C.
§ 924(c). (Criminal Complaint 1, ECF No. 1.) On January
16, 2014, the Government filed a Criminal Information,
charging McClammy with one count of conspiracy to obstruct,
delay, and affect commerce by robbery, in violation of 18
U.S.C. § 1951(a) (Count One); aiding and abetting bank
robbery, in violation of 18 U.S.C. §§ 2113(a) and 2
(Count Two); aiding and abetting the brandishing a firearm in
furtherance of a crime of violence, in violation of 18 U.S.C.
§§ 924(c) and 2 (Count Three); and aiding and
abetting the discharge of a firearm in furtherance of a crime
of violence, in violation of 18 U.S.C. §§ 924(c)
and 2 (Count Four). (Criminal Information 1-5, ECF No.
January 28, 2014, McClammy entered into a Plea Agreement in
which he agreed to plead guilty to the four charges contained
in the Criminal Information. (Plea Agreement ¶ 1, ECF
No. 18.) On May 1, 2014, the Court entered judgment against
McClammy and sentenced him to 432 months of incarceration.
(J. 2, ECF No. 27.) Specifically, the Court sentenced
McClammy to twelve months on each of Counts One and Two, to
be served concurrently; 300 months on Count Three, to be
served consecutively; and 120 months on Count Four, to be
served consecutively. (Id.) McClammy did not appeal.
MOTIONS TO AMEND
Motion to Amend and Pro Se Motion to Amend, McClammy seeks
leave to assert a claim that his "conviction under 18
U.S.C. § 924(c) in Count Four must be vacated in light
of the Supreme Court's recent decision in Johnson v.
United States, 135 S.Ct. 2551 (2015)." (Mot. Amend
1; see also Pro Se Mot. Amend 1-3.) In
Johnson, the Supreme Court held "that imposing
an increased sentence under the residual clause of the Armed
Career Criminal Act violates the Constitution's guarantee
of due process." 135 S.Ct. at 2563. McClammy now
contends that after Johnson, the offense of Hobbs
Act robbery can no longer qualify as a crime of violence
under 18 U.S.C. § 924(c)(3), and thus, his conviction
for Count Four must be vacated. (ECF No. 42-1, at 2-3.)
Although McClammy was not sentenced pursuant to the Armed
Career Criminal Act, he asserts that "[t]he §
924(c) residual clause is materially indistinguishable from
the Armed Career Criminal Act (ACCA) residual clause (18
U.S.C. § 924(e)(2)(B)(ii)) that the Supreme Court in
Johnson struck down as unconstitutionally
vague." (Id. at 2.) As discussed below,
McClammy's motions to amend will be denied as futile.
15(a) of the Federal Rules of Civil Procedure provides that
after a responsive pleading is served, a party seeking to
amend the original pleading must seek either written consent
of the opposing party or leave of the court. Fed.R.Civ.P.
15(a)(2). "[L]eave to amend shall be given freely,
absent bad faith, undue prejudice to the opposing party, or
futility of amendment." United States v
Pittman, 209 F.3d 314, 317 (4th Cir. 2000)
(citations omitted). The Court appropriately denies as futile
leave to amend when the statute of limitations bars the new
claim. See Ingram v. Buckingham Corr. Or., No.
3:09CV831, 2011 WL 1792460, at *1 (E.D. Va. May 5, 2011).
relies on cases such as United States v. Edmundson,
153 F.Supp.3d 857, 859-64 (D. Md. 2015), to argue that
conspiracy to commit Hobbs Act robbery fails to qualify as a
predicate "crime of violence" offense to support a
sentence enhancement under 18 U.S.C. §
924(c). In essence, the Government opposes the
motions to amend on the ground that it would be futile to
permit McClammy to amend because he raises a new claim for
relief that is barred by the statute of limitations. McClammy
responds that his new claim is timely filed under 18 U.S.C.
§ 2255(f)(3) and amendment should be permitted. As
discussed below, the Court will deny the various motions to
amend because the new Johnson claim asserted is
barred by the statute of limitations and is therefore futile.
Statute of Limitations
101 of the Antiterrorism and Effective Death Penalty Act
("AEDPA") amended 28 U.S.C. § 2255 to
establish a one-year period of limitation for the filing of a
§ 2255 Motion. Specifically, 28 U.S.C. § 2255(0 now
(f) A 1-year period of limitation shall apply to a motion
under this section. The limit1ation period shall run ...