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United States v. Burleigh

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

April 15, 2019

UNITED STATES OF AMERICA,
v.
LARRY ANTONIO BURLEIGH, Petitioner.

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

          HENRY E. HUDSON, SENIOR UNITED STATES DISTRICT JUDGE.

         Larry 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).[1] 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.

         I. FACTUAL AND PROCEDURAL HISTORY

         As 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.)

         On 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.)

         On June 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 of limitations.

         II. ANALYSIS

         A. Burleigh's § 2255 Motion is Untimely

         Under 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).

         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), [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).

         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.[2] 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.

         Burleigh 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).[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).

         Burleigh 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.")[4] 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 granted.

         B. Burleigh's ...


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