United States District Court, E.D. Virginia, Richmond Division
HANNAH LAUCK JUDGE.
Derrick Baylor, a federal inmate proceeding with counsel,
brings this successive motion pursuant to 28 U.S.C. §
2255 to vacate, set aside, or correct his sentence
("Successive § 2255 Motion," ECF No. 170;
see Mem. Supp. § 2255 Mot., ECF No.
189). Baylor contends that his convictions and
sentences are invalid under Johnson v. United
States, 135 S.Ct. 2551 (2015). The Government filed a
Motion to Dismiss contending that the relevant statute of
limitations bars relief. (ECF No. 183.) As discussed below,
while the Government correctly asserts that the Successive
§ 2255 Motion is untimely, the Court also finds that
Baylor's Johnson claim lacks merit.
March 1, 2011, a grand jury charged Baylor with: conspiracy
to interfere with commerce by threats and violence, in
violation of 18 U.S.C. § 1951(a) ("Hobbs Act
robbery") (Count One); three additional counts of Hobbs
Act robbery (Counts Two, Eight, and Eleven); use and carry of
a firearm in furtherance of a crime of violence, in violation
of 18 U.S.C. § 924(c)(1)(A)(ii) and 2 (Counts Three,
Nine, and Twelve); and possession of a firearm by a felon, in
violation of 18 U.S.C. § 922(g)(1) and 2 (Counts Four,
Ten, and Thirteen). (Indictment 1-8, ECF No. 1.) On January
30, 2012, the Government filed a motion to dismiss Counts
Five through Ten as to Baylor and his co-defendant and
brother, Troy Baylor. (ECF No. 79.) The Court granted the
Government's motion by Order entered on February 1, 2012.
(ECF No. 81.) Following trial, a jury convicted Baylor of all
of the remaining counts. (ECF No. 87, at 1-3.) On April 24,
2012, the Court entered judgment against Baylor and sentenced
him to a total of 514 months of imprisonment. (J. 3, ECF No.
through counsel, filed a Notice of Appeal to the United
States Court of Appeals for the Fourth Circuit. (ECF No.
112.) The Fourth Circuit affirmed this Court's judgment.
(ECF Nos. 126, 127.) On December 2, 2013, the United States
Supreme Court denied Baylor's petition for a writ of
certiorari. Baylor v. United States, 134 S.Ct. 717
Memorandum Opinion and Order entered on February 4, 2016, the
Court denied Baylor's first § 2255 motion.
United States v. Baylor, No. 3:11CR64, 2016 WL
455430, at *1-7 (E.D. Va. Feb. 4, 2016); (see ECF
Nos. 154, 155.) On June 27, 2016, Baylor filed the instant
Successive § 2255 Motion. (ECF No. 170.) On June 30,
2016, the Fourth Circuit granted Baylor permission to file a
successive § 2255 motion based on Johnson v. United
States, 135 S.Ct. 2551 (2015). (ECF No. 172.)
Thereafter, the Government moved to dismiss, arguing that the
Successive § 2255 Motion is barred by the relevant
statute of limitations. (ECF No. 183.)
Baylor's $ 2255 Motion is Untimely
28 U.S.C. § 2255(f)(1), Baylor 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, Baylor's
Successive § 2255 Motion is untimely. Baylor contends 28
U.S.C. § 2255(f)(3) entitles him to a belated
commencement of the limitation period.
benefit from the limitations period stated in §
2255(f)(3), Baylor "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).
asserts that the right recognized in Johnson affords
him relief. 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 2563The Johnson Court
declared unconstitutionally vague the residual clause in the
ACCA's definition of prior "violent felony," 18
U.S.C. § 924(e)(2)(B)(ii), because the clause
encompassed "conduct that presents a serious potential
risk of physical injury to another," which had defied
clear definition. 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 Johnson renders his sentence unlawful,
and in doing so, he argues that Johnson restarted
the one-year limitation period pursuant to §
2255(f)(3). For a petitioner to satisfy §
2255(f)(3), the Supreme Court must 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 using and carrying a firearm
during the commission of a crime of violence, to wit, Hobbs
Act robbery, in violation of 18 U.S.C. § 924(c) (Counts
Two, Three, Eleven, and Twelve). Baylor's argument-that
the residual clause of § 924(c) is unconstitutionally
vague-simply was not a rule announced in Johnson.
Rather, the Supreme Court's holding in Johnson
addressed only 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).
Baylor's claim about the vagueness of § 924(c)'s
residual clause falls entirely outside the holding by the
Supreme Court in Johnson. See United States v. Cool,
No. 1:11-CR-l 88, 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 Baylor's Successive § 2255 Motion is untimely
and barred from review. Accordingly, the Government's
Motion to Dismiss (ECF No. 183) will be GRANTED.
Baylor's Claim Lacks Merit because his Hobbs Act
Robberies Qualify as Crimes of Violence under the Force
Clause of ...