United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
E. Smith, a federal inmate proceeding pro se, filed
this 28 U.S.C. § 2255 Motion ("§ 2255
Motion," ECF No. 48) arguing that his convictions and
sentences are invalid under Johnson v. United
States, 135 S.Ct. 2551 (2015). The Government filed a
Motion to Dismiss the § 2255 Motion contending that it
is barred by the relevant statute of limitations. (ECF No.
51.) As discussed below, while the Government correctly
asserts that the § 2255 Motion is untimely, the Court
also finds that Smith's Johnson claim lacks
FACTUAL AND PROCEDURAL HISTORY
jury returned a seven-count Indictment charging Smith with
four counts of interference with commerce by threats and
violence, in violation of 18 U.S.C. §§ 1951(a)
("Hobbs Act robbery") (Counts One through Four);
and three counts of possession of a firearm in furtherance of
a crime of violence as alleged in Counts One, Two and Three,
in violation of 18 U.S.C. § 924 (c) (Counts Five through
Seven). (Indictment 1-4, ECF No. 1.) On December 9, 2011,
Smith pled guilty to Counts One, Two, Three, Four, Five, and
Seven of the Indictment. (Plea Agreement ¶ 1, ECF No.
20.) On February 28, 2012, the Court sentenced Smith to
eighty-seven months on Counts One, Two, Three, and Four to
run concurrently, eighty-four months on Count Five to run
consecutively, and three-hundred months on Count Seven to run
consecutively. (J. 3, ECF No. 34.)
16, 2016, Smith filed his § 2255 Motion arguing that his
convictions under 18 U.S.C. § 924(c) in Counts Five and
Seven must be vacated in light of the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015). Thereafter, the Government moved to dismiss, arguing
that the § 2255 Motion is barred by the relevant statute
Smith's § 2255 Motion Is Untimely
28 U.S.C. § 2255(f)(1), Smith 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, Smith's §
2255 Motion is untimely. Smith 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), [Smith] 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) (second alteration in original).
"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, 1268 (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 conviction is 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) (citations omitted).
was convicted 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). Smith'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 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, Smith'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.
1:11-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.")Thus, the
Government correctly asserts that Smith's § 2255
Motion is untimely and barred from review here. Accordingly,
the Government's Motion to Dismiss (ECF No. 62) will be
Smith's Claim Lacks Merit.
Johnson claim also lacks merit. See United
States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994)
(noting that a district court may summarily dismiss a §
2255 motion where "files, and records 'show
conclusively that the movant is not entitled to relief"
(quoting United States v. Day, 969 F.2d 39, 41-42
(3d Cir. 1992))). Smith contends that after Johnson,
the offense of Hobbs Act robbery can no longer qualify as a
crime of violence under 18 U.S.C. § 924(c)(3), and thus,
his conviction for Count Two must be vacated. Although Smith
was not sentenced pursuant to ACCA, he asserts that the
residual clause of § 924(c) is ...