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United States v. Cotman

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

March 27, 2019




         Jamal 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.


         On 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.)

         On 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.)

         On 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.)

         By 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.

         II. ANALYSIS

         A. Cotman's § 2255 Motion is Untimely

         Under 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).

         Section 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).

         The "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.[1]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.

         Cotman 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).[2]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).

         Cotman 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 ...

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