United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255
E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE
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
FACTUAL AND PROCEDURAL HISTORY
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.)
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).
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).
20, 2016, Cain filed his § 2255 Motion. (ECF No. 31.)
Cain's § 2255 Motion is
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) 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).
"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 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). 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 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