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United States v. Heineman

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

April 1, 2019

UNITED STATES OF AMERICA,
v.
DANIEL L. HEINEMAN, Defendant.

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

          Henry E. Hudson, Senior United States District Judge.

         Daniel L. Heineman, a federal inmate proceeding with counsel, filed this 28 U.S.C. § 2255 Motion ("§ 2255 Motion," ECF No. 50) 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 Heineman's Johnson claim lacks merit.

         I. FACTUAL AND PROCEDURAL HISTORY

         A grand jury returned a three-count Indictment charging Heineman with conspiracy to interfere with commerce by threats and violence in violation of 18 U.S.C. § 1951(a) ("Hobbs Act robbery") (Count One), a second count of Hobbs Act robbery (Count Two), possess, brandish, and discharge a firearm in relation to a crime of violence as alleged in Count Two, in violation of 18 U.S.C. § 924(c)(1) (Count Three). (Indictment 1-3, ECF No. 1.) On December 22, 2006, Heineman pled guilty to Counts One and Two of the Indictment. (Plea Agreement ¶ 1, ECF No. 14.) On March 30, 2007, the Court sentenced Bland to sixty-three months of incarceration on Count Two and one hundred and twenty months of incarceration on Count Three to be served consecutively. (J. 2, ECF No. 28.)

         On June 20, 2016, Heineman filed his § 2255 Motion arguing 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.

         II. ANALYSIS

         A. Heineman's § 2255 Motion is Untimely

         Under 28 U.S.C. § 2255(0(1), Heineman 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, Heineman's § 2255 Motion is untimely. Heineman 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), [Heineman] 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.

         Heineman 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).[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 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).

         Heineman was convicted of 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). Heineman's argument-that the residual clause of § 924(c) is unconstitutionally vague- simply was not a rule 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, Heineman'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. 1:1 l-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.")[3] Thus, the Government correctly asserts that Heineman's § 2255 Motion is untimely and barred from review here. Accordingly, the Government's Motion to Dismiss (ECF No. 53) will be granted.

         B. Heineman's Claim Lacks Merit.

         Heineman's 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))). Heineman 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 Heineman was not sentenced pursuant to ACCA, he asserts that the residual clause of § 924(c) is ...


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