United States District Court, D. South Carolina, Anderson/Greenwood Division
ORDER AND OPINION
matter is before the court on Petitioner's Motion to
Vacate under 28 U.S.C. § 2255. (ECF No. 87.) Petitioner
seeks relief from his sentence under United States v.
Johnson, 135 S.Ct. 2551 (2015). (Id. at 15.)
For the reasons stated below, the court
DENIES Petitioner's Motion to Vacate
under 28 U.S.C. § 2255 (ECF No. 87).
FACTUAL AND PROCEDURAL BACKGROUND
February 24, 1998, a jury found Petitioner guilty of armed
bank robbery in violation of 18 U.S.C. § 2113(a) and 18
U.S.C. § 924(c). (Id. at 16.) Petitioner was
sentenced to 322 months of incarceration and five (5) years
of supervised release. (Id.; see also ECF
No. 25.) On June 30, 2014, Petitioner filed a Motion to
Vacate under 28 U.S.C. § 2255 (ECF No. 58), which the
court dismissed (ECF No. 60). On June 24, 2016, the United
States Court of Appeals for the Fourth Circuit granted
Petitioner's Motion to file a successive Motion to Vacate
under 28 U.S.C. § 2255. (ECF No. 83.) On the same day,
Petitioner filed a pro se Motion to Vacate under 28
U.S.C. § 2255. (ECF No. 87.) The Government did not
respond to Petitioner's Motion.
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
asserts that “[i]n light of Johnson v. United
States, [he] has no convictions that qualify as
predicate offenses under U.S.S.G. § 4B1.1 [(Career
Offender Sentencing Guidelines)].” (ECF No. 87 at 17.)
Petitioner also asserts that “[h]is sentence is based
in part on the residual clause [of U.S.S.G. § 4B1.1, ]
and that provision was struck down by the Supreme
Court.” (Id.) Petitioner ultimately asserts
that his sentence under U.S.S.G. § 4B1.1 violates his
due process rights and the laws the United States.
(Id. at 14.)
Johnson v. United States, the United States Supreme
Court held that the residual clause of the Armed Career
Criminal Act (“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
was not sentenced under the ACCA, but under the Career
Offender Sentencing Guidelines. In Beckles v. United
States, the United States Supreme Court held that
“[ ] the advisory Sentencing Guidelines are not subject
to a due process vagueness challenge, §4B1.2(a)'s
residual clause is not void for vagueness.” 137 S.Ct.
886, 897 (2017). The Sentencing Guidelines became advisory
pursuant to the Supreme Court's holding in United
States v. Booker, 543 U.S. 220 (2005). However,
Petitioner was sentenced under the sentencing guidelines when
they were mandatory, and in Beckles the Supreme
Court did not address whether its holding applied to those
defendants sentenced under the mandatory Sentencing
Guidelines. See Beckles, 137 S.Ct. at 903
Fourth Circuit addressed whether defendants sentenced under
the mandatory Sentencing Guidelines could utilize the holding
in Johnson to collaterally attack their sentences
under 28 U.S.C. § 2255. See United States v.
Brown, 868 F.3d 297 (4th Cir. 2017). In Brown,
the Fourth Circuit held that a § 2255 motion seeking to
attack a defendant's sentence imposed under the mandatory
guidelines does not fall within the statute of limitations in
§ 2255(f)(3) because the Supreme Court has not
recognized a new right entitling the defendant to relief.
See Brown, 868 F.3d at 304; see also United
States v. Harris, No. CR 3:00-780-CMC, 2018 WL 1586431,
at *2 (D.S.C. Apr. 2, 2018) (citing Brown).
cannot assert the new right recognized in Johnson
because the holding in Johnson only concerned the
residual clause of the ACCA, not the residual clause of the
Sentencing Guidelines. See Brown, 868 F.3d at 302
(“Johnson did not discuss the mandatory
Sentencing Guidelines' residual clause at issue here or
residual clauses in other versions of the Sentencing
Guidelines.”). Therefore, because Petitioner cannot
assert the new right recognized in Johnson,
Petitioner cannot utilize 28 U.S.C. § 2255(f)(3) and the
one-year time period after Johnson in order to file
his claim. See Harris, 2018 WL 1586431, at *2.
Petitioner must bring his claim under another subsection of
28 U.S.C. § 2255(f) and the only one that is available
is subsection (f)(1).
because Petitioner was convicted in 1997 and Petitioner's
Motion (ECF No. 87) was filed well outside the one-year
statute of limitations for filing his claim under 28 U.S.C.