United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255
E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE
Antonio Cotman, a federal inmate proceeding pro se,
filed this successive 28 U.S.C. § 2255 Motion
("Successive § 2255 Motion," ECF No. 68)
arguing that his conviction and sentence are invalid under
Johnson v. United States, 135 S.Ct. 2551 (2015). The
Government filed a Motion to Dismiss the § 2255 Motion
contending that it is barred by the relevant statute of
limitations. (ECF No. 69.) As discussed below, while the
Government correctly asserts that the § 2255 Motion is
untimely, the Court also finds that Cotman's
Johnson claim lacks merit.
FACTUAL AND PROCEDURAL HISTORY
August 3, 2010, Cotman was charged with: interference with
commerce by threats and violence, "by attempting to rob
at gun-point an individual of United States Currency and
marijuana" ("Hobbs Act robbery") (Count One);
discharging a firearm in furtherance of a crime of violence
(Count Two); and possession of a firearm by a convicted felon
(Count Three). (Superseding Indictment 1-2, ECF No. 10.)
September 30, 2010, Cotman pled guilty to Count Three. (ECF
No. 16, at 1.) On October 5, 2010, a jury found Cotman guilty
of Counts One and Two. (ECF No. 24.)
January 11, 2011, the Court sentenced Cotman to 120 months of
imprisonment on Counts One and Three, to be served
concurrently, and 120 months on Count Two, to be served
consecutively to Counts One and Three. (J. 2, ECF No. 30.)
Cotman appealed. (ECF No. 32.) On December 20, 2011, the
United States Court of Appeals for the Fourth Circuit
affirmed the decision of this Court. (ECF No. 51, at 3.)
Memorandum Opinion and Order entered on September 17, 2015,
this Court denied a prior 28 U.S.C. § 2255 motion filed
by Cotman. (ECF No. 62, 63.) On June 2, 2016, the Fourth
Circuit authorized Cotman to file a successive § 2255
motion with this Court. (ECF No. 66.) On June 9, 2016, Cotman
filed his Successive § 2255 Motion. (ECF No. 68.)
Thereafter, the Government moved to dismiss, arguing that the
Successive § 2255 Motion is barred by the relevant
statute of limitations.
Cotman's § 2255 Motion is Untimely
28 U.S.C. § 2255(f)(1), Cotman was required to file any
28 U.S.C. § 2255 motion within one year after his
conviction became final. Accordingly, absent a belated
commencement of the limitation period, Cotman's
Successive § 2255 Motion is untimely. Cotman contends
that he is entitled to a belated commencement of the
limitation period under 28 U.S.C. § 2255(f)(3).
2255(f)(3) provides that a petitioner may bring a claim
within a year of the date of which the right asserted was
initially recognized by the Supreme Court. "[T]o obtain
the benefit of the limitations period stated in §
2255(f)(3), [Cotman] must show: (1) that the Supreme Court
recognized a new right; (2) that the right 'has been ...
made retroactively applicable to cases on collateral
review'; and (3) that he filed his motion within one year
of the date on which the Supreme Court recognized the
right." United States v. Mathur, 685 F.3d 396,
398 (4th Cir. 2012) (alteration in original).
"right" asserted here is the right recognized in
Johnson. In Johnson, the Supreme Court held
"that imposing an increased sentence under the residual
clause of the Armed Career Criminal Act [("ACCA")]
violates the Constitution's guarantee of due
process." 135 S.Ct. 2563.The Johnson Court
concluded that the way the residual clause of the ACCA, 18
U.S.C. § 924(e)(2)(B)(ii), defined "violent
felony" was unconstitutionally vague because the clause
encompassed "conduct that presents a serious potential
risk of physical injury to another." Id. at
2557-58. Subsequently, in Welch v. United States,
136 S.Ct. 1257, 1268 (2016), the Supreme Court held that
"Johnson announced a substantive rule of law
that has retroactive effect in cases on collateral
review." Id. at 1268.
asserts that his sentence is unlawful in light of
Johnson, and in doing so, he argues that
Johnson restarted the one-year limitation period
pursuant to § 2255(f)(3).For a petitioner to satisfy
section 2255(f)(3), the Supreme Court itself must be the
judicial body to establish the right in question. See
Doddv. United States, 545 U.S. 353, 357 (2005).
"[I]f the existence of a right remains an open question
as a matter of Supreme Court precedent, then the Supreme
Court has not 'recognized' that right."
United States v. Brown, 868 F.3d 297, 301 (4th Cir.
2017) (citations omitted).
was convicted of discharging a firearm during the commission
of a crime of violence, to wit, attempted Hobbs Act robbery,
in violation of 18 U.S.C. § 924(c). Cotman's
argument-that the residual clause of § 924(c) is
unconstitutionally vague- simply was not a rule announced in
Johnson. Rather, the Supreme Court's holding in
Johnson only addressed the residual clause of ACCA.
As the Fourth Circuit has observed, although "the
Supreme Court held unconstitutionally vague the [residual
clause in ACCA], ... the [Supreme] Court had no occasion to
review ... the residual clause [of § 924(c)]."
United States v. Fuertes,805 F.3d 485, 499 n.5 (4th
Cir. 2015). Thus, Cotman's contention that §
924(c)'s residual clause is unconstitutionally vague was
not a right announced by the Supreme Court in Johnson.
See United States v. Cook, No. 1:11-CR-188, 2019 WL
921448, at *3 (E.D. Va. Feb. 25, 2019) ("[T]he question
of [Sessionsv. Dimaya, 138 S.Ct.
1204 (2018)] and Johnson's effect on ...