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United States v. McClammy

United States District Court, E.D. Virginia, Richmond Division

July 17, 2018

UNITED STATES OF AMERICA
v.
CARLOS McCLAMMY, Petitioner.

          MEMORANDUM OPINION (DENYING MOTIONS TO AMEND AND GRANTING MOTION TO DISMISS)

          HENRY E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE.

         Carlos 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).[1] 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.

         Before 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 granted.

         I. PROCEDURAL HISTORY

         On 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. 14.)[2]

         On 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.

         II. MOTIONS TO AMEND

         In his 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.

         A. Rule 15

         Rule 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).

         McClammy 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).[3] 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.

         B. Statute of Limitations

         Section 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 reads:

(f) A 1-year period of limitation shall apply to a motion under this section. The limit1ation period shall run ...

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