United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255
E.HUDSON, SENIOR UNITED STATES DISTRICT JUDGE
Malik Hill, a federal inmate proceeding pro se,
filed a 28 U.S.C. § 2255 motion on October 2, 2013. On
June 20, 2016, Hill filed a Motion to Supplement His §
2255 Motion ("Motion to Supplement," ECF No. 111)
arguing that his firearm convictions and sentences are
invalid under Johnson v. United States, 135 S.Ct.
2551 (2015). By Memorandum Opinion and Order entered on July
15, 2016, the Court denied Hill's § 2255 Motion and
directed the Government to respond to the Motion to
Supplement. (ECF Nos. 114, 115.)
Government responded that Hill's Johnson claim
is barred by the relevant statute of limitations. (ECF No.
119.) As discussed below, while the Government correctly
asserts that the Motion to Supplement is untimely, the Court
also finds that Hill's Johnson claim lacks
FACTUAL AND PROCEDURAL HISTORY
pertinent here, on February 22, 2011, Hill was charged with:
carjacking and aiding and abetting carjacking in violation of
18 U.S.C. §§2119 and 2 (Count Three); possessing a
firearm in furtherance of a crime of violence, to wit, the
crime charged in Count Three, in violation of 18 U.S.C.
§§ 924(c) and 2 (Count Four); interference with
commerce by threats and violence in violation of 18 U.S.C.
§§ 1951 and 2 ("Hobbs Act robbery")
(Count Five); and, possessing a firearm in furtherance of a
crime of violence, to wit, the crime charged in Count Five,
in violation of 18 U.S.C. §§ 924(c) and 2 (Count
Six). (ECF No. 21, at 2-5.)
March 22, 2011, Hill pled guilty to Counts Three, Four, and
Six. (ECF No. 28, at 1.) On June 21, 2011, the Court
sentenced Hill to 100 months on Count Three, 120 months on
Count Four, and 300 months on Count Six, to be served
consecutively. (ECF No. 44, at 1-2.) Hill appealed. (ECF No.
53.) On March 12, 2012, the United States Court of Appeals
for the Fourth Circuit dismissed his appeal. (ECF No. 72, at
October 2, 2013, Hill filed his § 2255 Motion. (ECF No.
81.) On June 20, 2016, Hill filed a Motion to Supplement. By
Memorandum Opinion and Order entered on July 15, 2016, the
Court denied Hill's § 2255 Motion and dismissed his
claim that he was denied the effective assistance of counsel
because counsel failed to request a competency hearing. (ECF
Nos. 114, 115.) Thereafter, the Government moved to dismiss
Hill's Johnson claim, arguing that such a claim
is barred by the relevant statute of limitations.
Hill's § 2255 Motion to Supplement is
28 U.S.C. § 2255(f)(1), Hill 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, Hill's Motion to
Supplement is untimely. Hill contends that he 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), [Hill] 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).
"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 his firearm convictions are unlawful in light
of Johnson, and in doing so, he 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 two counts of possessing a firearm during
the commission of a crime of violence, to wit, carjacking and
Hobbs Act robbery, in violation of 18 U.S.C. § 924(c).
Hill's argument-that the residual clause of § 924(c)
is unconstitutionally 18 U.S.C. § 924(e)(1). Under the
residual clause, the term violent felony had been
"defined to include any felony that 'involves
conduct that presents a serious potential risk of physical
injury to another.'" Johnson, 135 S.Ct. at
2555 (quoting 18 U.S.C. § 924(e)(2)(B)). vague-simply
was not a right announced in Johnson. Rather, the
Supreme Court's holding in Johnson only
addressed 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). Thus,
Hill'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 ...