United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255
E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE.
Khalil Naeem, a federal inmate proceeding pro se,
filed this 28 U.S.C. § 2255 Motion ("§ 2255
Motion," ECF No. 53) arguing that his firearm conviction
and sentence 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.
57.) As discussed below, the Court finds that Naeem's
Johnson claim lacks merit and may be dismissed on
FACTUAL AND PROCEDURAL HISTORY
April 5, 2011, Naeem was charged in a three-count Superseding
Indictment with: conspiracy to unlawfully obstruct, delay and
affect, and attempt to obstruct, delay and affect, commerce
by robbery (Count One); bank robbery of Virginia
Partner's Bank in Fredericksburg, Virginia (Count Two);
and using, carrying, and brandishing a firearm during and in
relation to a crime of violence, to wit, the bank robbery
charged in Count One (Count Three). (ECF No. 14, at 1-6.) On
June 3, 2011, Naeem pled guilty to all three counts. (ECF No.
17, at 1-2.)
August 26, 2011, the Court entered judgment and sentenced
Naeem to 240 months on Count One, 240 months on Count Two to
be served concurrently with Count One, and 120 months on
Count Three to be served consecutively. (ECF No. 35, at
2.)Naeem did not appeal.
April 3, 2017, Naeem placed his § 2255 Motion in the
prison mail system for mailing to this Court. (ECF No. 53, at
13.) The Court deems the § 2255 Motion filed as of that
date. See Houston v. Lack, 487 U.S. 266, 276 (1988).
Thereafter, the Government moved to dismiss, arguing that the
§ 2255 Motion is barred by the relevant statute of
28 U.S.C. § 2255(f)(1), Naeem was required to file any
28 U.S.C. § 2255 motion within one year after his
conviction became final. Because Naeem did not appeal, under
28 U.S.C. § 2255(f)(1), his conviction became final on
Friday, September 9, 2011, the last date to file an appeal.
See United States v. Clayton, No. 3:07cr488, 2010 WL
4735762, at *3 (E.D. Va. Nov. 15, 2010) (citing Arnette
v. United States, Nos. 4:01CR16, 4:04CV122, 2005 WL
1026711, at *4 (E.D. Va. May 2, 2005)). Hence, Naeem had
until Monday, September 10, 2012 to file any motion under 28
U.S.C. § 2255. Accordingly, absent a belated
commencement of the limitation period, Naeem's §
2255 Motion is untimely. Naeem contends that he is entitled
to a belated commencement of the limitation period under 28
U.S.C. § 2255(f)(3).
asserts that his firearm 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). Naeem was convicted of using,
carrying, and brandishing a firearm during the commission of
a crime of violence, to wit, bank robbery, in violation of 18
U.S.C. § 924(c). Naeem'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,
Naeem's contention that § 924(c)'s residual
clause is unconstitutionally vague was not a right announced
by the Supreme Court in Johnson. However, the
Supreme Court's decision in United States v.
Davis, 139 S.Ct. 2319 (2019),  may call into question the
timeliness of Naeem's § 2255 Motion. The Court need
not engage in further discussion of the timeliness of
Naeem's § 2255 Motion because it can be dismissed
for lack of merit.
Naeem's Claim Lacks Merit.
Johnson claim plainly 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))). Naeem contends that after Johnson,
the offense of bank robbery can no longer qualify as a crime
of violence under 18 U.S.C. § 924(c)(3), and thus, his
conviction for Count Three must be vacated.
18 U.S.C. section 924(c)(1)(A) provides for consecutive
periods of imprisonment when a defendant uses or carries a
firearm in furtherance of a crime of violence. The baseline
additional period of imprisonment is five years. 18 U.S.C.
§ 924(c)(1)(A)(i). If the defendant brandishes the
firearm, the additional period of imprisonment increases to
at least seven years. Id. § 924(c)(1)(A)(ii).
And, if the defendant discharges the firearm, the additional
period of imprisonment increases to at least ten years.
Id. § 924(c)(1)(A)(iii).
recently, the United States could demonstrate that an
underlying offense constituted a crime of violence if it
established that the offense was a felony and satisfied one
of two requirements. ...