United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255
E. HUDSON, SENIOR UNITED STATES DISTRICT JUDGE.
Raheem-Rashad Pulliam, a federal inmate proceeding pro
se, filed this 28 U.S.C. § 2255 Motion
("§ 2255 Motion," ECF No. 84) 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. 90.) As discussed below, while the Government
correctly asserts that the § 2255 Motion is untimely,
the Court also finds that Pulliam's Johnson
claim lacks merit.
FACTUAL AND PROCEDURAL HISTORY
November 7, 2012, Pulliam was charged in a two-count
indictment with: the bank robbery of the Village Bank in
Midlothian, Virginia (Count One): and using, carrying, and
brandishing a firearm during and in relation to a crime of
violence, to wit, the bank robbery charged in Count One
(Count Two). (ECF No. 15, at 1-2.) On January 22, 2013,
Pulliam agreed to plead guilty to Counts One and Two. (ECF
No. 25, at 1.)
13, 2013, Pulliam was charged in a Supplemental Criminal
Information with interference with commerce by threats and
violence ("Hobbs Act robbery") by robbing "at
gun-point the New Exxon Mart," in Glen Allen, Virginia.
(ECF No. 62, at 1.) On May 14, 2013, Pulliam pled guilty to
the Hobbs Act robbery charged in the Supplemental Criminal
Information. (ECF No. 65.)
23, 2013, the Court entered judgment on the above convictions
and sentenced Pulliam to 115 months on Count One, 84 months
on Count Two, and 144 months on the Hobbs Act robbery, all to
be served consecutively. (ECF No. 73, at 2.) Pulliam did not
17, 2016, Pulliam placed his § 2255 Motion in the prison
mail system for mailing to this Court. (ECF No. 84, at 9.)
The Court deems the § 2255 Motion filed as of that date.
See Houston v. Lack, 487 U.S. 266, 276 (1988).
Thereafter, the Government moved to dismiss, arguing that the
§ 2255 Motion is barred by the relevant statute of
Pulliam's § 2255 Motion is Untimely
28 U.S.C. § 2255(f)(1), Pulliam was required to file any
28 U.S.C. § 2255 motion within one year after his
conviction became final. Because Pulliam did not appeal,
under 28 U.S.C. § 2255(f)(1), his conviction became
final on Thursday, June 6, 2013, the last date to file an
appeal. See United States v. Clayton, No. 3:O7cr488,
2010 WL 4735762, at *3 (E.D. Va. Nov. 15, 2010) (citing
Arnette v. United States, Nos. 4:OICRI6, 4:O4CVI22,
2005 WL 1026711, at *4 (E.D. Va. May 2, 2005)). Hence,
Pulliam had until June 6, 2014 to file any motion under 28
U.S.C. § 2255. Accordingly, absent a belated
commencement of the limitation period, Pulliam's §
2255 Motion is untimely. Pulliam 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), [Pulliam] 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 using, carrying, and brandishing a firearm
during the commission of a crime of violence, to wit, bank
robbery, in violation of 18 U.S.C. § 924(c).
Pulliam'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, Pulliam'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