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United States v. Pulliam

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

April 5, 2019

UNITED STATES OF AMERICA,
v.
JEROME RAHEEM-RASHAD PULLIAM, Defendant.

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

          HENRY E. HUDSON, SENIOR UNITED STATES DISTRICT JUDGE.

         Jerome 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.

         I. FACTUAL AND PROCEDURAL HISTORY

         On 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.)

         On May 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.)

         On May 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 appeal.

         On June 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 limitations.

         II. ANALYSIS

         A. Pulliam's § 2255 Motion is Untimely

         Under 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).

         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), [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).

         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. at 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 (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.

         Pulliam 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).[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) (citation omitted).

         Pulliam 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 ...


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