United States District Court, E.D. Virginia
MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255
E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE
Bilal Al-Amin Bin McDaniel, a federal inmate proceeding
pro se, filed this 28 U.S.C. § 2255 Motion
("§ 2255 Motion") 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. 87.) As discussed below, while the Government
correctly asserts that the § 2255 Motion is untimely,
the Court also finds that McDaniel's Johnson
claim lacks merit.
FACTUAL AND PROCEDURAL HISTORY
August 23, 2006, McDaniel was charged with: conspiracy to
interfere with commerce by threats and violence (Count One);
interference with commerce by threats and violence
("Hobbs Act robbery") (Count Two); and possessing
and brandishing a firearm in furtherance of a crime of
violence, to wit, the crimes charged in Counts One and Two
(Count Three). (ECF No. 1, at 1-2.)
December 19, 2006, McDaniel pled guilty to Counts Two and
Three. (ECF No. 31, at 1.) With respect to Count Three, the
Plea Agreement specified that McDaniel possessed and
brandished the "firearm in furtherance of the crime of
violence charged in Count Two" (Id.) On April
18, 2007, the Court sentenced McDaniel to 240 months of
imprisonment on Count Two and 84 months on Count Three, to be
served consecutively to Count Two. (ECF No. 52, at 2.)
McDaniel did not appeal.
April 19, 2016, McDaniel filed his § 2255 Motion. (ECF
No. 80.) Thereafter, the Government moved to dismiss, arguing
that the § 2255 Motion is barred by the relevant statute
McDaniel's § 2255 Motion is
28 U.S.C. § 2255(f)(1), McDaniel 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, McDaniel's §
2255 Motion is untimely. McDaniel 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), [McDaniel] 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).
"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. at 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 (citation omitted). Subsequently, in Welch v.
United States, 136 S.Ct. 1257 (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 firearm 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) (citation omitted).
was convicted of possessing and 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).
McDaniel'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). Accordingly, McDaniel'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
Section 924(c)(3)(B) is not yet settled.") Thus, the
Government correctly asserts that McDaniel's § 2255
Motion is untimely and barred from review here. Accordingly,
the Government's Motion to Dismiss (ECF No. 87) will be