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United States v. Cain

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

March 29, 2019

UNITED STATES OF AMERICA,
v.
LINWOOD CAIN, Defendant.

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

          HENRY E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE

         Linwood Cain, a federal inmate proceeding with counsel, filed this successive 28 U.S.C. § 2255 Motion ("§ 2255 Motion," ECF No. 31) arguing that his firearm convictions 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. 34.) As discussed below, while the Government correctly asserts that the § 2255 Motion is untimely, the Court also finds that Cain's Johnson claim lacks merit.

         I. FACTUAL AND PROCEDURAL HISTORY

         On August 3, 2011, Cain was charged with: interference with commerce by threats and violence by robbing the Family Dollar Store in Lawrence, Virginia ("Hobbs Act robbery") (Count One); using or carrying a firearm during and in relation to a crime of violence, to wit, the crime charged in Court One (Count Two); attempted Hobbs Act robbery of the First Citizens Bank in Brunswick, Virginia (Count Three); using and carrying a firearm during and in relation to a crime of violence, to wit, the crime charged in Count Three (Count Four); and possession of a firearm by a convicted felon (Count Five). (Indictment 1-3, ECF No. 1.)

         On October 19, 2011, Cain pled guilty to Counts Two and Four (ECF No. 14, at 1), and the Government agreed to dismiss the remaining Counts of the Indictment. (Id. at 6).

         On January 27, 2012, the Court sentenced Cain to 84 months of imprisonment on Count Two and 300 months on Count Four, to be served consecutively. (ECF No. 23, at 2).

         On June 20, 2016, Cain filed his § 2255 Motion. (ECF No. 31.)

         II. ANALYSIS

         A. Cain's § 2255 Motion is Untimely

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

         Cain asserts that his convictions are 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).

         Cain was convicted of two counts of using and carrying a firearm during the commission of a crime of violence, to wit, the Hobbs Act robbery charged in Count One and the attempted Hobbs Act robbery charged in Count Three, in violation of 18 U.S.C. § 924(c). Cain'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, Cain'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 ...


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