United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255
E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE
Terry Gibbs, a federal inmate proceeding with counsel, filed
this 28 U.S.C. § 2255 Motion ("§ 2255
Motion," ECF No. 47) 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.
49.) As discussed below, while the Government correctly
asserts that the § 2255 Motion is untimely, the Court
also finds that Gibbs's Johnson claim lacks
FACTUAL AND PROCEDURAL HISTORY
2, 2009, Gibbs was charged with: conspiracy to interfere with
commerce by threats and violence (Count One); interference
with commerce by threats and violence ("Hobbs Act
robbery") by robbing Paul Terry Boyles (Count Two);
brandishing a firearm in furtherance of a crime of violence,
to wit, the crime charged in Count Two (Count Three); and,
possession of a firearm and ammunition by a convicted felon
(Count Four). (Indictment 1-2, ECF No. 1.)
September 8, 2009, pursuant to a Plea Agreement, Gibbs pled
guilty to Counts One and Three and the Government agreed to
dismiss the remaining charges. (ECF No. 23, at 1, 5.) On
December 11, 2009, the Court sentenced Gibbs to 60 months of
imprisonment on Count One and 84 months on Count Three to be
served consecutively to Count One. (ECF No. 31, at 2.)
23, 2016, Gibbs filed his initial § 2255 Motion. (ECF
No. 44.) Thereafter, the Government moved to dismiss, arguing
that the § 2255 Motion is barred by the relevant statute
Gibbs's § 2255 Motion is Untimely
28 U.S.C. § 2255(f)(1), Gibbs 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, Gibbs's §
2255 Motion is untimely. Gibbs 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), [Gibbs] 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 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
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 using, carrying and brandishing a firearm
during the commission of a crime of violence, to wit, the
Hobbs Act robbery of Paul Terry Boyles, in violation of 18
U.S.C. § 924(c). Gibbs'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,
Gibbs'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 Gibbs's § 2255 Motion is untimely and barred
from review here. Accordingly, the Government's Motion to
Dismiss (ECF No. 49) will be granted.