United States District Court, E.D. Virginia, Richmond Division
A. Gibney Jr. United States District Judge.
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
FACTUAL AND PROCEDURAL HISTORY
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.)
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.
Smith's § 2255 Motion is Untimely
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).
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).
"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 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). 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 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."). 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.
Smith's Claim Lacks Merit
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 ...