United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255
E. HUDSON, SENIOR UNITED STATES DISTRICT JUDGE
James Bearden, a federal inmate proceeding pro se,
filed this 28 U.S.C. § 2255 Motion ("§ 2255
Motion," ECF No. 45) arguing that his firearm
convictions and sentences 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. 52.) As discussed below, while the Government
correctly asserts that the § 2255 Motion is untimely,
the Court also finds that Bearden's Johnson
claim lacks merit.
FACTUAL AND PROCEDURAL HISTORY
January 5, 1999, Bearden was charged in a nineteen-count
indictment. (ECF No. 1.) As pertinent here, Bearden was
charged with: interference with commerce by threats and
violence ("Hobbs Act robbery") of a supermarket on
Jahnke Road, in Richmond, Virginia (Count One); using and
carrying a firearm in furtherance of a crime of violence, to
wit, the crime charged in Count One (Count Two); the Hobbs
Act robbery of a pharmacy on Forest Hill Avenue in Richmond,
Virginia (Count Five); and, using and carrying a firearm in
furtherance of a crime of violence, to wit, the crime charged
in Count Five (Count Six). (ECF No. 1, at 1-4.)
January 21, 2000, pursuant to a Plea Agreement, Bearden pled
guilty to Counts Two and Six and the Government agreed to
dismiss the remaining counts of the Indictment. (ECF No. 21,
at 1, 3-4.) On April 27, 2000, the Court sentenced Bearden to
60 months of imprisonment on Count Two and 300 months on
Count Six to be served consecutively to Count Two. (ECF No.
28, at 2.)
August 12, 2005, the United States Court of Appeals for the
Fourth Circuit dismissed as untimely a notice of appeal filed
by Bearden. (ECF No. 42, at 2.)
6, 2016, Bearden filed his § 2255 Motion. (ECF No. 45.)
Thereafter, the Government moved to dismiss, arguing that the
§ 2255 Motion is barred by the relevant statute of
Bearden's § 2255 Motion is Untimely
28 U.S.C. § 2255(f)(1), Bearden 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, Bearden's §
2255 Motion is untimely. Bearden 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), [Bearden] 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 two counts of using and carrying a firearm
during the commission of a crime of violence, to wit, Hobbs
Act robbery, in violation of 18 U.S.C. § 924(c).
Bearden'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, Bearden'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