Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Bland

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

March 28, 2019

UNITED STATES OF AMERICA,
v.
BRYAN BLAND, Defendant.

          MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255 MOTION)

          HENRY E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE.

         Bryan Bland, a federal inmate proceeding with counsel, filed this 28 U.S.C. § 2255 Motion ("§ 2255 Motion," ECF No. 45) 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. 49.) As discussed below, while the Government correctly asserts that the § 2255 Motion is untimely, the Court also finds that Bland's Johnson claim lacks merit.

         I. FACTUAL AND PROCEDURAL HISTORY

         A grand jury returned a three count Indictment charging Bland with robbery affecting commerce, in violation of 18 U.S.C. § 1951(a) ("Hobbs Act robbery") (Count One), use, carry, brandish, and possess a firearm in relation to a crime of violence as alleged in Count One, in violation of 18 U.S.C. § 924(c)(1) (Count Two), and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count Three). (Indictment 1-3, ECF No. 1.) During Bland's arraignment, the Government moved to dismiss Count Three, and the Court granted that motion. (ECF No. 18.) On November 4, 2010, Bland pled guilty to Counts One and Two of the Indictment. (Plea Agreement ¶ 1, ECF No. 28.) On February 9, 2011, the Court sentenced Bland to thirty-seven months of incarceration on Count One and eight-four months of incarceration on Count Two to be served consecutively. (J. 2, ECF No. 40.)

         On June 20, 2016, Bland filed his § 2255 Motion arguing that, his conviction under 18 U.S.C. § 924(c) in Count Two must be vacated in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Thereafter, the Government moved to dismiss, arguing that the § 2255 Motion is barred by the relevant statute of limitations.

         II. ANALYSIS

         A. Eland's § 2255 Motion is Untimely

         Under 28 U.S.C. § 2255(f)(1), Bland 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, Bland's § 2255 Motion is untimely. Bland 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), [Bland] 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.

         Bland 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 Dodd v. 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).

         Bland was convicted of brandishing a firearm during the commission of a crime of violence, to wit, Hobbs Act robbery, in violation of 18 U.S.C. § 924(c). Bland'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, Bland'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. 1:1 l-CR-188, 2019 WL 921448, at *3 (E.D. Va. Feb. 25, 2019) ("[T]he question of [Sessions v. Dimaya, 138 S.Ct. 1204 (2018)] and Johnson's effect on Section 924(c)(3)(B) is not yet settled.")[3] Thus, the Government correctly asserts that Bland's § 2255 Motion is untimely and barred from review here. Accordingly, the Government's Motion to Dismiss (ECF No. 49) will be granted.

         B. Bland's Claim Lacks Merit.

         Bland's Johnson claim also lacks merit. See United States v. Nahodil,36 F.3d 323, 326 (3d Cir. 1994) (noting that a district court may summarily dismiss a § 2255 motion where "files, and records 'show conclusively that the movant is not entitled to relief.'" (quoting United States v. Day,969 F.2d 39, 41-42 (3d Cir. 1992))). Bland 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 convictions for Count Two must be vacated. Although Bland was not sentenced pursuant to ACCA, he asserts that the residual clause of § 924(c) is ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.