United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255
E. HUDSON, SENIOR UNITED STATES DISTRICT JUDGE.
Antonio Burleigh, a federal inmate proceeding pro
se, filed this 28 U.S.C. § 2255 Motion
("§ 2255 Motion," ECF Nos. 113, 116) arguing
that his firearm convictions and sentences 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. 117.) As discussed
below, while the Government correctly asserts that the §
2255 Motion is untimely, the Court also finds that
Burleigh's Johnson claim lack merit.
FACTUAL AND PROCEDURAL HISTORY
pertinent here, on February 22, 2011, Burleigh was charged
with: carjacking and aiding and abetting carjacking in
violation of 18 U.S.C. §§2119 and 2 (Count Three);
possessing a firearm in furtherance of a crime of violence,
to wit, the crime charged in Count Three, in violation of 18
U.S.C. §§ 924(c) and 2 (Count Four); interference
with commerce by threats and violence in violation of 18
U.S.C. §§ 1951 and 2 ("Hobbs Act
robbery") (Count Five); and possessing a firearm in
furtherance of a crime of violence, to wit, the crime charged
in Count Five in violation of 18 U.S.C. §§ 924(c)
and 2 (Count Six). (ECF No. 21, at 2-5.)
March 22, 2011, Burleigh pled guilty to Counts Three, Four,
and Six. (ECF No. 32, at 1.) On June 20, 2011, the Court
sentenced Burleigh to 125 months on Count Three, 120 months
on Count Four, and 300 months on Count Six, to be served
consecutively. (ECF No. 46, at 1-2.) Burleigh appealed. (ECF
No. 48.) On February 23, 2012, the United States Court of
Appeals for the Fourth Circuit dismissed his appeal. (ECF No.
70, at 3.)
27, 2016, Burleigh filed his § 2255 Motion. (ECF No.
113.) Thereafter, the Government moved to dismiss, arguing
that the § 2255 Motion is barred by the relevant statute
Burleigh's § 2255 Motion is Untimely
28 U.S.C. § 2255(f)(1), Burleigh 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, Burleigh's §
2255 Motion is untimely. Burleigh 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), [Burleigh] 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 convictions are 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 two counts of possessing a firearm during
the commission of a crime of violence, to wit, carjacking and
Hobbs Act robbery, in violation of 18 U.S.C. § 924(c).
Burleigh'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, Burleigh'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 Burleigh's § 2255
Motion is untimely and barred from review here. Accordingly,
the Government's Motion to Dismiss (ECF No. 117) will be