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United States v. Wilt

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

April 24, 2019

UNITED STATES OF AMERICA,
v.
MARK SHERMAN WILT, Petitioner.

          MEMORANDUM OPINION

          M. HANNAH LAUCK UNITED STATES DISTRICT JUDGE.

         Mark Sherman Wilt, a federal inmate proceeding with counsel, filed this 28 U.S.C. § 2255 Motion to set aside, vacate, or correct his sentence, ("§ 2255 Motion," ECF No. 28), arguing that Johnson v. United States, 135 S.Ct. 2551 (2015), invalidated his firearm conviction, sentence, and career offender sentencing enhancement. See U.S. Sentencing Guidelines Manual §§ 4B1.1, 4B1.2. The Government filed a Motion to Dismiss contending that the relevant statute of limitations bars relief. (ECF No. 32.) The Motion to Dismiss, however, addressed only Wilt's challenge to his firearm conviction. As discussed below, while the Government correctly asserts untimeliness, the Court also finds that both of Wilt's Johnson claims lack merit.

         I. Pertinent Factual and Procedural History

          On May 22, 2012, Wilt was charged with: interference with commerce by threats and violence ("Hobbs Act robbery") (Count One); using, carrying, and brandishing a firearm in furtherance of a crime of violence, to wit, the crime charged in Count One (Count Two); possession of a firearm by a convicted felon (Count Three); transportation of a stolen firearm in interstate commerce (Count Four); and possession of a stolen firearm (Count Five). (Indictment 1-2, ECF No. 1.)

         On August 1, 2014, pursuant to a Plea Agreement, Wilt pled guilty to Counts One and Two and the Government agreed to dismiss the remaining counts. (ECF No. 15, at 1, 5.) The presentence report ("PSR") designated Wilt a career offender based on his Utah offenses of "Burglary, Second Degree ... and Attempted Threat Against Life/Property, 3rd Degree." (PSR ¶¶ 29, 35, 44, ECF No. 21.) On November 1, 2012, the Court sentenced Wilt to 156 months on Count One and 84 months on Count Two, running consecutively. (ECF No. 25, at 2.)

         On June 27, 2016, Wilt filed his § 2255 Motion. (ECF No. 28.) Thereafter, the Government moved to dismiss, arguing that the § 2255 Motion is barred by the relevant statute of limitations.

         II. Analysis

         A. Wilt's $ 2255 Motion is Untimely

          Under 28 U.S.C. § 2255(f)(1), Wilt 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, Wilt's § 2255 Motion is untimely. Wilt 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), Wilt 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).

         Wilt 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.[1]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.

         Wilt asserts that Johnson renders his firearm conviction unlawful, and in doing so, he 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 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).

         Wilt was convicted of using, carrying, and brandishing a firearm in furtherance of a crime of violence, to wit, Hobbs Act robbery, in violation of 18 U.S.C. § 924(c). Wilt'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 addressed only the residual clause of ACCA. As the United States Court of Appeals for 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). Accordingly, Wilt'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. Coo£, No. 1:11-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 Wilt's challenge to his firearm conviction is untimely and barred from review. Accordingly, the Government's Motion to Dismiss (ECF No. 32) will be GRANTED.

         B. Wilt's Claims Lacks Merit

         Wilt's Johnson claims also lack merit. See United States v. Nahodil,36 F.3d 323, 326 (3d Cir. 1994) (noting that a district court may summarily dismiss a ยง 2255 motion where "files, and records 'show conclusively that the movant is not entitled to relief" ...


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