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United States v. Baylor

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

April 24, 2019

UNITED STATES OF AMERICA
v.
JAMES DERRICK BAYLOR, Petitioner.

          MEMORANDUM OPINION

          M. HANNAH LAUCK JUDGE.

         James 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).[1] 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.

         I. Procedural History

         On 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. 106.)

         Baylor, 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 (2013).

         By 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.)

         II. Analysis

         A. Baylor's $ 2255 Motion is Untimely

         Under 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.

         To 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).

         Baylor 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 2563[2]The 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.

         Baylor 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).[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).

         Baylor 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.").[4] 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.

         B. Baylor's Claim Lacks Merit because his Hobbs Act Robberies Qualify as Crimes of Violence under the Force Clause of ...


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