United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255
E.HUDSON SENIOR UNITED STATES DISTRICT JUDGE
Jones, a federal inmate proceeding pro se, filed
this successive 28 U.S.C. § 2255 Motion ("§
2255 Motion," ECF No. 40) arguing that his firearm
conviction is 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.
44.) As discussed below, while the Government correctly
asserts that the § 2255 Motion is untimely, the Court
also finds that Jones's Johnson claim lacks
FACTUAL AND PROCEDURAL HISTORY
September 19, 2011, Jones was charged with: attempted
interference with commerce by threats and violence
("attempted Hobbs Act robbery") by attempting to
rob The Market Place (Count One); and using and carrying a
firearm in furtherance of a crime of violence, to wit, the
crime charged in Count One (Count Two). (Indictment 1-3, ECF
December 2, 2011, Jones pled guilty to Counts One and Two.
(ECF No. 14, at 1).
March 9, 2012, the Court sentenced Jones to 120 months of
imprisonment on Count One and 120 months on Count Two, to be
served consecutively. (ECF No. 24, at 2). Jones did not
appeal. On July 11, 2016, Jones filed his Successive §
2255 Motion. (ECF No. 40.)
Jones's § 2255 Motion is Untimely
28 U.S.C. § 2255(f)(1), Jones 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, Jones's §
2255 Motion is untimely. Jones 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), [Jones] 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
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) (citation omitted).
was convicted of one count of using and carrying a firearm
during the commission of a crime of violence, to wit, the
attempted Hobbs Act robbery charged in Count One, in
violation of 18 U.S.C. § 924(c). Jones'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, Jones'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 Jones's § 2255 Motion is untimely and barred
from review here. Accordingly, the Government's Motion to
Dismiss (ECF No. 44) will be granted.