United States District Court, E.D. North Carolina, Western Division
EARL BRITT, SENIOR U.S. DISTRICT JUDGE
matter is before the court on petitioner's motions to
vacate his sentence pursuant to 28 U.S.C. § 2255, (DE #
80), and to supplement his § 2255 motion, (DE # 110).
The government has filed a motion to dismiss the § 2255
motion, (DE # 100), to which petitioner filed a response in
opposition, (DE # 109).
1993, a jury found petitioner guilty of conspiracy to commit
armed bank robbery in violation of 18 U.S.C. § 371;
armed bank robbery and aiding and abetting the same in
violation of 18 U.S.C. §§ 2 and 2113(a), (d); and
possession of a firearm during a crime of violence and aiding
and abetting the same in violation of 18 U.S.C. §§2
and 924(c). The court sentenced petitioner to a total term of
imprisonment of nearly 42 years. Petitioner unsuccessfully
appealed his convictions and his sentence on the firearm
offense. See United States v. Smart, No. 93-5465, 19
F.3d 1431 (4th Cir. 1994) (per curiam). He then filed several
§ 2255 motions, none of which were successful.
2016, the Fourth Circuit Court of Appeals granted petitioner
authorization to file the instant § 2255 motion, (DE
#81), which petitioner, with the assistance of
court-appointed counsel, filed the same day. Based on the
decision in Johnson v. United States, 125 S.Ct. 2551
(2015), petitioner claims that his prior North Carolina
conviction for assault on a law enforcement officer is not a
valid predicate conviction to support application of the
career offender enhancement under the mandatory sentencing
guidelines,  and therefore, his sentence, which was
enhanced on this basis, should be vacated. (See
Mot., DE # 80, at 4, 12.)
several motions, the court stayed the proceeding. (DE ## 86,
95, 99.) After the decision in United States v.
Brown, 868 F.3d 297 (4th Cir. 2017), cert.
denied, 139 S.Ct. 14 (2018), the government filed the
instant motion to dismiss. The government contends that
petitioner's § 2255 is untimely and should be
dismissed. (Mem., DE # 101, at 2-3.)
general, a § 2255 motion is timely if it is filed within
one year of the date the petitioner's judgment became
final. 28 U.S.C. § 2255(f)(1). “However, under
§ 2255(f)(3), courts will consider a petitioner's
motion timely if (1) he relies on a right recognized by the
Supreme Court after his judgment became final, (2) he files a
motion within one year from ‘the date on which the
right asserted was initially recognized by the Supreme
Court,' and (3) the Supreme Court or th[e appellate]
court has made the right retroactively applicable.”
Brown, 868 F.3d at 301 (citations omitted).
Brown, the Fourth Circuit addressed the timeliness
of a § 2255 motion where the petitioner challenged his
career offender status under the mandatory sentencing
guidelines in light of Johnson and other Supreme
Court cases. 868 F.3d at 300. The court held that because the
Supreme Court did not discuss the mandatory sentencing
guidelines in Johnson or in subsequent cases, the
Supreme Court has not recognized the right on which the
petitioner relies and he cannot use § 2255(f)(3) to make
his habeas corpus motion timely. Id. at 302-03.
judgment became final more than two decades ago. Although he
filed his § 2255 motion within one year of the
Johnson decision, like the petitioner in
Brown, he cannot rely on § 2255(f)(3) to make
his motion timely. See id. at 304. Petitioner
appears to argue that the court should reject the holding in
Brown and instead rely on Justices Sotomayor and
Ginsburg's dissent from the Supreme Court's denial of
the petition for a writ of certiorari in that case.
(See Resp., DE # 109, at 3-5.) This court is bound
to follow Brown until a panel of the Fourth Circuit
or a majority of the Supreme Court justices says otherwise.
further argues that this court should issue an alternative
writ of habeas corpus under 28 U.S.C. § 2241. (See
id. at 6.) Petitioner is incarcerated in the District of
New Jersey. Therefore, he must file any motion for habeas
corpus relief under § 2241 in that district. See In
re Jones, 226 F.3d 328, 334 (4th Cir. 2000). The court
expresses no opinion on the timeliness or the merits of any
motion petitioner might file under that statute.
petitioner requests to supplement his § 2255 motion to
add two habeas corpus claims. First, he seeks to add a claim
that his prior New York conviction for sale of narcotics is
not a valid predicate conviction for application of the
career offender sentencing enhancement based on the decisions
in Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017),
and United States v. Townsend, 897 F.3d 66 (2d Cir.
2018). (Mot., DE # 110, at 1-7.) Adding such a claim would be
futile because petitioner's 2255 motion remains untimely
under § 2255(f)(3). He did not file his motion to
supplement within one year of those decisions, and neither
decision is based on a right recently recognized by the
second claim petitioner seeks to add is one challenging his
§ 924(c) conviction, and he relies on the decision in
United States v. Davis, 139 S.Ct. 2319 (2019).
(Mot., DE # 110, at 713.) In that case, the Supreme Court
held that the residual clause of § 924(c)(3)(B), which
defines “crime of violence” for purposes of
§ 924(c), is unconstitutionally vague. Davis,
139 S.Ct. at 2336. The court need not consider the timeliness
of petitioner's claim based on Davis as the
claim is meritless. An alternative definition of “crime
of violence” is contained within the force clause of
§ 924(c)(3)(A). Armed bank robbery, the predicate
offense for petitioner's § 924(c) conviction, is a
“crime of violence” under the force clause.
United States v. McNeal, 818 F.3d 141, 157 (4th Cir.
2016). Therefore, the holding in Davis has no impact
on petitioner's § 924(c) conviction and
supplementing his § 2255 motion to assert such a claim
would be futile.
on futility, petitioner's motion to supplement his §
2255 motion is DENIED. See Estate of Williams-Moore v.
All. One Receivables Mgmt., Inc., 335 F.Supp.2d 636, 644
(M.D. N.C. 2004) (“Rule 15(d) motions [to supplement]
are to be evaluated under the same standards used to evaluate
motions to amend pleadings under Rule 15(a), which generally
states that leave to amend shall be freely granted when
justice requires unless there are valid reasons for denying
leave, such as undue delay, bad faith, or futility.”
(citation omitted)). Because petitioner did not timely file
his § 2255 motion, the government's motion to
dismiss is ALLOWED, and the § 2255 motion is DISMISSED.
The court finds that petitioner has not made “a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). Pursuant to Rule
11(a) of the Rules Governing Section 2255 Proceedings, a
certificate of appealability is DENIED. The Clerk is DIRECTED
to enter judgment, close this proceeding, and send petitioner
the authorized form for filing a § 2241 motion.