United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255
E. Hudson, Senior United States District Judge.
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
FACTUAL AND PROCEDURAL HISTORY
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.)
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
Heineman's § 2255 Motion is Untimely
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).
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).
"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
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).
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.") 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.
Heineman's Claim Lacks Merit.
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