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United States v. Clayton

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

April 24, 2019

UNITED STATES OF AMERICA,
v.
CORNELIUS EUGENE CLAYTON, Petitioner.

          MEMORANDUM OPINION

          M. HANNAH LAUCK, UNITED STATES DISTRICT JUDGE

         Cornelius Eugene Clayton, a federal inmate proceeding with counsel, filed this 28 U.S.C. § 2255 Motion to vacate, set aside, or correct his sentence, arguing that Johnson v. United States, 135 S. Ct. 2551 (2015), renders his firearm convictions and sentences invalid.[1] The Government filed a Motion to Dismiss contending that the relevant statute of limitations bars relief. (ECF No. 174.) As discussed below, while the Government correctly asserts that the § 2255 Motion is untimely, the Court also finds that Clayton's Johnson claim lacks merit.

         I. Pertinent Factual and Procedural History

         On November 5, 2013, Clayton was charged with: conspiracy to interfere with commerce by threats and violence (Count One); interference with commerce by threats and violence ("Hobbs Act robbery") by robbing a McDonald's in Chesterfield, Virginia (Count Two); using, carrying, and brandishing a firearm in furtherance of a crime of violence, to wit, the crime charged in Count Two (Count Three); the Hobbs Act robbery of a McDonald's in Dinwiddie County, Virginia (Count Four); and using, carrying, and brandishing a firearm in furtherance of a crime of violence, to wit, the crime charged in Count Four (Count Five). (Indictment 1-8, ECF No. 1.)

         On April 10, 2014, pursuant to a plea agreement, Clayton pled guilty to Counts One, Three, and Five and the Government agreed to dismiss the remaining counts. (ECF No. 66, at 1, 7.) On July 7, 2014, the Court sentenced Clayton to 24 months on Count One, 84 months on Count Three, and 300 months on Count Five, running consecutively. (ECF No. 110, at 2.)

         On June 16, 2016, Clayton filed his § 2255 Motion. (ECF No. 158.) Thereafter, the Government moved to dismiss, arguing that the § 2255 Motion is barred by the relevant statute of limitations.

         II. Analysis

         A. Clayton's $ 2255 Motion is Untimely

          Under 28 U.S.C. § 2255(f)(1), Clayton 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, Clayton's § 2255 Motion is untimely. Clayton contends that 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), Clayton "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).

         Clayton 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.

         Clayton 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).

         Clayton was convicted of two counts 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). Clayton'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 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, Clayton'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. Cook, 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.")[4] Thus, the Government correctly asserts that Clayton's § 2255 Motion is untimely and barred from review. Accordingly, the Government's Motion to Dismiss (ECF No. 174) will be GRANTED.

         B. Clayton's Claim Lacks Merit Because His Hobbs Act Robberies Qualify as Crimes of Violence under the Force Clause of ...


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