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United States v. Smith

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

April 23, 2019

UNITED STATES OF AMERICA,
v.
VERONICA CHRISTINA SMITH, Petitioner.

          MEMORANDUM OPINION

          John A. Gibney Jr. United States District Judge.

         Veronica Christina Smith, a federal inmate proceeding pro se, filed this 28 U.S.C. § 2255 Motion ("§ 2255 Motion," ECF No. 103) arguing that her 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. 120.) As discussed below, while the Government correctly asserts that the § 2255 Motion is untimely, the Court also finds that Smith's Johnson claim lacks merit.

         I. FACTUAL AND PROCEDURAL HISTORY

         On August 20, 2013, Smith was charged in a two-count indictment with: the attempted interference with commerce by attempted robbery ("attempted Hobbs Act robbery") by attempting to rob the Zales Jewelry Store in Fredericksburg, Virginia (Count One); and using and carrying a firearm during and in relation to a crime of violence, to wit, the attempted Hobbs Act robbery charged in Count One (Count Two). (ECF No. 13, at 1-2.) On October 31, 2013, Smith agreed to plead guilty to Counts One and Two. (ECF No. 20, at 1.)

         On January 31, 2014, the Court sentenced Smith to 27 months on Count One and 60 months on Count Two, to be served consecutively. (ECF No. 50, at 2.) Smith did not appeal.

         II. ANALYSIS

         A. Smith's § 2255 Motion is Untimely

         Under 28 U.S.C. § 2255(f)(1), Smith was required to file any 28 U.S.C. § 2255 motion within one year after her conviction became final. Accordingly, absent a belated commencement of the limitation period, Smith's § 2255 Motion is untimely. Smith contends that she 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), [Smith] 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 [she] filed [her] 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.

         Smith asserts that her firearm conviction is unlawful in light of Johnson, and in doing so, she 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).

         Smith 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). Smith'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 the ACCA. As the Fourth Circuit has observed, although "the Supreme Court held unconstitutionally vague the [residual clause in the 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, Smith'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.").[3] Thus, the Government correctly asserts that Smith's § 2255 Motion is untimely and barred from review here. Accordingly, the Government's Motion to Dismiss (ECF No. 120) will be GRANTED.

         B. Smith's Claim Lacks Merit

         Smith's Johnson claim also lacks merit. See United States v. Nahodil,36 F.3d 323, 326 (3d Cir. 1994) (noting that a district court may summarily dismiss a § 2255 motion where "files, and records 'show conclusively that the movant is not entitled to relief" (quoting United States v. Day,969 F.2d 39, 41-42 (3d Cir. 1992))). Smith contends that after Johnson, attempted Hobbs Act robbery can no longer qualify as a crime of violence under 18 U.S.C. § 924(c)(3), and thus, her conviction for Count Two must be vacated. Although Smith was not sentenced pursuant to the ACCA, she asserts that the residual clause of § 924(c) is ...


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