United States District Court, D. South Carolina, Greenville Division
ORDER AND OPINION
matter is before the court on Petitioner's Motion to
Vacate under 28 U.S.C. § 2255. (ECF No. 44.) Petitioner
seeks relief from his sentence under United States v.
Johnson, 135 S.Ct. 2551 (2015). (See ECF No. 40 at
1.) For the reasons stated below, the court
DENIES Petitioner's Motion to Vacate
under 28 U.S.C. § 2255 (ECF No. 44).
AND PROCEDURAL BACKGROUND
April 11, 2006, Petitioner was indicted for being a felon in
possession of a firearm, 18 U.S.C. § 922(g)(1), and
possessing crack cocaine with the intent to distribute, 21
U.S.C. § 841(a). (ECF No. 1.) On March 2, 2007,
Petitioner pled guilty to being a felon in possession of a
firearm (ECF No. 24) and was sentenced to 180 months
imprisonment and five (5) years of supervised release (ECF
No. 28). On January 25, 2016, this case was reassigned to the
undersigned and Petitioner filed a Motion to Appoint Counsel
in order that he may seek relief under Johnson. (ECF
No. 40.) On March 16, 2016, the court granted
Petitioner's Motion to Appoint Counsel (ECF No. 40). (ECF
No. 42.) On June 20, 2016, Petitioner filed a pro se
Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 44),
and on July 19, 2016, the government responded (ECF No. 47).
order to move for relief under 28 U.S.C. § 2255,
Petitioner must plead that he was sentenced “(1) in
violation of the Constitution or laws of the United States,
(2) the court was without jurisdiction to impose such
sentence, (3) that the sentence was in excess of the maximum
authorized by law, or (4) that his sentence is otherwise
subject to collateral attack.” 28 U.S.C. §
to 28 U.S.C. § 2255(f), a petitioner has one year from
the time his or her conviction becomes final to file a motion
under this section, or one year from “the date on which
the right asserted was initially recognized by the United
States Supreme Court, if that right has been newly recognized
by the Supreme Court and made retroactively applicable to
cases on collateral review.” See 28 U.S.C.
§ 2255(f)(1), (3).
Petitioner is a pro se litigant, the court is
required to liberally construe his arguments. Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978); see also
Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro
se plaintiff's “inartful pleadings” may
be sufficient enough to provide the opportunity to offer
does not provide much support for the reason his sentence
should be vacated, but liberally construing Petitioner's
claim it seems that Petitioner asserts that his sentence is
now in excess of the maximum authorized by law because he
would not have fallen under the Armed Career Criminal Act
(“ACCA”) given the Supreme Court's holding in
Johnson. See 28 U.S.C. § 2255(a). As
to the timeliness of Petitioner's Motion, the court
presumes that Petitioner asserts that his Motion is timely
pursuant to 28 U.S.C. § 2255(f)(3), given the new right
recognized in Johnson.
Johnson v. United States, the United States Supreme
Court held that the residual clause of the ACCA was
unconstitutionally vague in violation of the Fifth Amendment
Due Process Clause. 135 S.Ct. at 2563. The residual clause
states that a violent felony could include “[crimes
that involve] conduct that presents a serious potential risk
of physical injury to another.” 18 U.S.C.
§924(e)(2)(B). Johnson was decided on June 26,
2015, and presented a new right for people who were sentenced
to a mandatory minimum sentence of fifteen (15) years when a
court utilized the residual clause of the statutory
definition of violent felony. In Welch v. United
States, the Supreme Court held that Johnson had
a retroactive effect in cases on collateral review. 136 S.Ct.
1257, 1268 (2016).
seeks relief under Johnson, but its holding does not
affect Petitioner's sentence because Petitioner's
sentence was based on his previous serious drug offenses. In
Johnson, the Supreme Court only ruled on the
ambiguity of the residual clause within the statutory
definition of violent felony under 18 U.S.C. §
924(e)(2)(B)(ii). Johnson, 135 S.Ct. at 2563. The
Supreme Court did not address the statutory definition of
“serious drug offense” or call into question any
other part of the statutory definition of violent felony.
Id. Therefore, in his Motion, Petitioner cannot
assert the new right recognized in Johnson,
ultimately making his motion untimely under 28 U.S.C. §
2255(f). Moreover, the Supreme Court's holding
in Johnson would not change Petitioner's status
because Petitioner was convicted of three (3) prior
“serious drug offenses” which establishes that
Petitioner could be sentenced under the ACCA. See 18
U.S.C. § 924(e)(1).
reasons stated above, the court DENIES
Petitioner's Motion to Vacate under 28 U.S.C. §