United States District Court, M.D. North Carolina
RECOMMENDATION OF UNITED STATES MAGISTRATE
WEBSTER UNITED STATES MAGISTRATE JUDGE.
in this action brings a Motion (Docket Entry 96) to vacate,
set aside, or correct his sentence under 28 U.S.C. §
2255. Petitioner pled guilty in this Court to (1) conspiracy
of possession with intent to distribute cocaine hydrochloride
in violation of 21 U.S.C. §§ 846, 841(a)(1),
(b)(1)(B) and (2) possession of counterfeited federal reserve
notes in violation of 18 U.S.C. §§ 472 and 2.
(Docket Entries 4, 26, 31, and 36.) Petitioner received a
sentence of 216 months of imprisonment. (Docket Entry 55.)
Petitioner filed a direct appeal, which he pursued through a
denial of a petition for certiorari by the United States
Supreme Court on March 20, 2006. Wade v. United
States, 547 U.S. 1031 (2006). Petitioner then filed a
motion seeking the reduction of his sentence in June of 2015
(Docket Entry 78), which was denied in January of 2016
(Docket Entry 88). He also filed a motion pursuant to §
2255 in November of 2015 (Docket Entry 80), which was
dismissed without prejudice in January of 2016 (Docket Entry
87). Petitioner again sought a reduction in his sentence in
March of 2016, which the undersigned recommended denying in a
prior recommendation. (Docket Entries 89 and 93.) Petitioner
then filed the instant Motion. (Docket Entry 96.) Respondent
responded with a Motion to Dismiss (Docket Entry 101), and
Petitioner filed a Response. (Docket Entry 104.)
pending § 2255 Motion challenges his sentence based on
Johnson v. United States, 135 S.Ct. 2551
(2015). (Docket Entry 96.) He contends that a
career offender sentencing enhancement applied to him under
§ 4B1.1 of a mandatory version of the United States
Sentencing Guidelines is no longer valid following
requests dismissal on the ground that Petitioner's Motion
was filed outside of the one-year limitation period imposed
by the Antiterrorism and Effective Death Penalty Act of 1996,
P.L. 104-132 (“AEDPA”). (Docket Entry 101.) 28
U.S.C. § 2255(f). The AEDPA amendments apply to all
motions filed under § 2255 after their effective date of
April 24, 1996. Lindh v. Murphy, 521 U.S. 320
(1997). Interpretations of 28 U.S.C. §§ 2244(d)(1)
and 2255 have equal applicability to one another. Sandvik
v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999).
§ 2255(f)(1), the limitation period runs from the date
when the judgment of conviction became final. Where a
petitioner files an appeal, finality has been construed to
mean when the petitioner may no longer seek further review
because of (1) the denial of a petition for certiorari to the
Supreme Court or (2) the expiration of the time for seeking
such review. Clay v. United States, 537 U.S. 522
(2003). Here, Petitioner filed a direct appeal, which he
pursued through a denial of a petition for certiorari by the
Supreme Court on March 20, 2006. Wade v. United
States, 547 U.S. 1031 (2006). Petitioner's year to
file under subsection (f)(1) began to run on that date.
Petitioner made no filings in this Court until 2015.
Petitioner's claim is years out of time under subsection
(f)(1). Only if another subsection gives Petitioner more time
to file will his Motion be timely.
2255(f)(2) requires an unlawful governmental action which
prevented Petitioner from filing the § 2255 motion.
Petitioner fails to allege or show that any unlawful
governmental action prevented him from filing his Motion.
Therefore, subsection two does not give Petitioner a longer
2255(f)(3) allows the limitation period to run from the date
on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized and
made retroactively applicable to cases on collateral review.
Petitioner relies on Johnson as the basis of his
claim, but Johnson does not provide Petitioner with
more time to file under subsection (f)(3). As the Fourth
Circuit explained in Brown when addressing a
Johnson-based challenge to a mandatory Guidelines
Although this court can render a right retroactively
applicable, only the Supreme Court can recognize a
new right under § 2255(f)(3). Consequently, to find
Petitioner's motion timely, we must conclude that it
relies on a right “recognized” in
Johnson or another more recent Supreme Court case. .
. . . .
While Johnson did announce a retroactively
applicable right, Johnson dealt only with the
residual clause of [the Armed Career Criminal Act, 18 U.S.C.
§ 924(e)]-a federal enhancement statute.
Johnson did not discuss the mandatory Sentencing
Guidelines' residual clause at issue here or residual
clauses in other versions of the Sentencing Guidelines.
. . . .
Accordingly, at least for purposes of collateral review, we
must wait for the Supreme Court to recognize the right urged
by Petitioner. We hold that Petitioner raises an untimely
motion in light of § 2255(f)(3)'s plain language,
the narrow nature of Johnson's binding holding,
and Beckles's indication that the position
advanced by Petitioner remains an open question in the
United States v. Brown, 868 F.3d 297, 301-03 (4th
Cir. 2017) (emphasis added) (internal citations and emphasis
omitted), cert. denied, 139 S.Ct. 14 (2018); see
also Brown, 868 F.3d at 299 (“[W]e are constrained
. . . from extrapolating beyond the Supreme Court's
holding to apply what we view as its ‘reasoning and
principles' to different facts under a different statute
or sentencing regime. We are thus compelled to affirm the
dismissal of Petitioner's motion as untimely under 28
U.S.C. § 2255(f)(3).”); Brown, 868 F.3d
at 304 (“We are constrained from reading between the
lines of [Supreme Court decisions] to create a right that the
Supreme Court has yet to recognize. We are compelled to
affirm [the dismissal of Petitioner's motion under
Section 2255] because only the Supreme Court can recognize
the right which would render Petitioner's motion timely
under § 2255(f)(3).”). Based on the above analysis
and the holding in Brown, subsection (f)(3) does not
render Petitioner's claim timely.
2255(f)(4) allows the limitation period to run from the date
on which the facts supporting the claims presented could have
been discovered through the exercise of due diligence.
Petitioner's claims in his Motion are based on facts that
existed and were known to him at the time his Judgment was
entered. Cases decided subsequent to Petitioner's direct
appeal do not constitute new facts affecting the statute of
limitations under subsection (f)(4). United States v.