United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255
E. HUDSON, SENIOR UNITED STATES DISTRICT JUDGE
Q. G. Leadbetter, a federal inmate proceeding with counsel,
filed this 28 U.S.C. § 2255 Motion ("§ 2255
Motion," ECF No. 51) arguing that his firearm 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.
53.) As discussed below, while the Government correctly
asserts that the § 2255 Motion is untimely, the Court
also finds that Leadbetter's Johnson claim lacks
FACTUAL AND PROCEDURAL HISTORY
jury returned a four count Indictment charging Leadbetter
with interference with commerce by robbery, in violation of
18 U.S.C. § 1951 ("Hobbs Act robbery") (Count
One), use, carry, and brandish a firearm during and in
relation to a crime of violence as alleged in Count One, in
violation of 18 U.S.C. § 924(c) (Count Two), possession
of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (Count Three), and possession of a firearm
with an obliterated serial number, in violation of 18 U.S.C.
§ 922(k) (Count Four). (Indictment 1-2, ECF No. 10.) A
jury convicted Leadbetter of all four counts. (ECF No. 28.)
On November 8, 2008, the Court sentenced Leadbetter to
seventy-one months of incarceration on Count One, eighty-four
months of incarceration on Count Two to be served
consecutively, seventy-one months of incarceration on Count
Three to be served concurrently, and sixty months of
incarceration on Count Four to be served concurrently. (J. 2,
ECF No. 36.) Leadbetter appealed, and on February 11, 2010,
the United States Court of Appeals for the Fourth Circuit
affirmed this Court's judgment. (ECF No. 44.)
22, 2016, Leadbetter filed his initial § 2255 motion.
(ECF No. 47.) Leadbetter argues 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.
Leadbetter's § 2255 Motion is Untimely
28 U.S.C. § 2255(f)(1), Leadbetter 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, Leadbetter's
§ 2255 Motion is untimely. Leadbetter 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), [Leadbetter] 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 (citation omitted). 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 conviction 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
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).
was convicted of using, carrying, and 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).
Leadbetter's argument-that the residual clause of §
924(c) is unconstitutionally vague-simply was not a right
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, Leadbetter'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 [Sessions v. Dimaya,
138 S.Ct. 1204 (2018)] and Johnson's effect on
Section 924(c)(3)(B) is not yet settled.") Thus, the
Government correctly asserts that Leadbetter's §
2255 Motion is untimely and barred from review here.
Accordingly, the Government's Motion to Dismiss (ECF No.
53) will be granted.
Leadbetter's Claim Lacks Merit.
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))). Leadbetter 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 Two must
be vacated. Although Leadbetter was not sentenced pursuant to
ACCA, he asserts that the residual clause of § 924(c) is