United States District Court, M.D. North Carolina
RECOMMENDATION OF UNITED STATES MAGISTRATE
ELIZABETH PEAKE UNITED STATES MAGISTRATE JUDGE
in this action brings a Motion [Doc. #3] to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255.
He was convicted in this Court of one count of possession
with intent to distribute cocaine hydrochloride in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and one count of
carrying and using a firearm during a drug trafficking crime
in violation of 18 U.S.C. § 924(c)(1). Petitioner
received a sentence of 320 months of imprisonment for the
drug conviction and a consecutive 60 months of imprisonment
for the firearm conviction. He unsuccessfully pursued a
direct appeal. After Petitioner filed his current Motion
under § 2255, Respondent responded with a Motion to
Dismiss [Doc. #7]. Thereafter, the Court entered an Order
[Doc. #11] staying this matter in light of United States
v. Brown, No. 17-9276 (U.S), which was then pending
before the United States Supreme Court on a petition for
certiorari. The Court ordered that any Supplemental Reply by
Petitioner be filed within 30 days of a decision in
Brown. The Supreme Court later denied certiorari in
Brown v. United States, ____ U.S. ____, 139 S.Ct. 14
(2018). Because more than thirty days have passed without any
further filings by the parties concerning Brown, the
Court will recommend that the stay be lifted and will address
the parties' pending Motions.
pending § 2255 Motion raises a single ground for relief
in which he challenges his sentence based on Johnson v.
United States, 576 U.S.____, 135 S.Ct. 2551 (2015). He
contends that a career offender sentencing enhancement that
was applied to him under § 4B1.1 of a mandatory version
of the United States Sentencing Guidelines is no longer valid
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”). 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
United States 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 the United States Court of Appeals for the Fourth
Circuit denied on March 1, 1994, in United States v.
Snipes, No. 92-5370, 1994 WL 62252 (4th Cir. Mar. 1,
1994) (unpublished). Petitioner did not seek certiorari,
which means that his conviction became final when his time
for seeking certiorari expired 90 days later on May 31, 1994.
See Sup. Ct. R. 13(1). Because Petitioner's
conviction became final before AEDPA's effective date,
his time began to run on that day and expired a year later on
April 24, 1997. See Hernandez v. Caldwell, 225 F.3d
435, 438 (4th Cir. 2000). Petitioner did not raise his
current claim for relief until 2016 when he filed his current
Motion. 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.
Whiteside, 775 F.3d 180, 184 (4th Cir. 2014). Therefore,
this subsection also does not apply and Petitioner's
Motion is untimely.
the Supreme Court has determined that the one-year limitation
period is subject to equitable tolling. Holland v.
Florida, 560 U.S. 631, 649 (2010). Equitable tolling may
apply when a petitioner “shows ‘(1) that he has
been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way' and
prevented timely filing.” Id. (quoting
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
However, Petitioner makes no argument that equitable tolling
applies in his case. His claim is untimely and should be
THEREFORE RECOMMENDED that the prior stay be lifted, that
Respondent's Motion to Dismiss [Doc. #7] be granted, that
Petitioner's Motion [Doc. #3] to vacate, set aside or
correct sentence be ...