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United States v. Smith

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

July 1, 2019

UNITED STATES OF AMERICA,
v.
ANTONIO E. SMITH, Petitioner.

          MEMORANDUM OPINION

          Robert E. Payne Senior United States District Judge

         Antonio 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 merit.

         I. FACTUAL AND PROCEDURAL HISTORY

         A grand 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.)

         On June 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 of limitations.

         II. ANALYSIS

         A. Smith's § 2255 Motion Is Untimely

         Under 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).

         Section 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).

         The "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.[1] 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.

         Smith 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).[2] 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).

         Smith 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.")[3]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 granted.

         B. Smith's Claim Lacks Merit.

         Smith's 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 ...


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