United States District Court, D. Maryland
RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE
pro se Petitioner Deshon Johnson
(“Petitioner” or “Johnson”) pled
guilty to one count of armed bank robbery, in violation of 18
U.S.C. §§ 2113(a) and (d). J., p. 1, ECF No. 64.
Subsequently, Judge Quarles of this Court sentenced Johnson
to 180 months imprisonment. Id. at 2. Currently
pending before this Court are Petitioner's Motion to
Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C.
§ 2255 (ECF No. 109) and the Government's Motion to
Dismiss Petitioner's Motion to Vacate (ECF No. 111). The
parties' submissions have been reviewed, and no hearing
is necessary. See Local Rule 105.6 (D. Md. 2016).
For the reasons stated herein, Petitioner's Motion to
Vacate (ECF No. 109) is DENIED, and the Government's
Motion to Dismiss Petitioner's Motion to Vacate (ECF No.
111) is GRANTED.
pro se Petitioner Eric Deshon Johnson
(“Petitioner” or “Johnson”) was
charged with seven counts, including armed bank robbery, in
violation of 18 U.S.C. §§ 2113(a) and (d) (Count
IV). Indictment, ECF No. 1. Johnson pled guilty to armed bank
robbery (Count IV), pursuant to a plea agreement (ECF No.
42), and the Government dismissed the remaining counts
against him (Counts I, V, VI, VII, VIII, and IX).
See J., p. 1, ECF No. 64. Subsequently, Judge
Quarles of this Court sentenced Johnson to 180
months imprisonment as to Count IV. Id. at 2.
Johnson did not appeal his conviction or sentence.
filed pro se are “liberally construed”
and are “held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citation omitted). A
prisoner sentenced by this Court “claiming the right to
be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to
vacate, set aside or correct the sentence.” 28 U.S.C.
§ 2255(a). A one-year statute of limitation applies to
Section 2255 motions to vacate. The limitation period runs
from the latest of . . . “the date on which the right
asserted was initially recognized by the Supreme Court, if
that right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral
review.” Id. at § 2255(f)(3).
contends that “Bank Robbery and Hobbs Act is no[ ]
longer a crime of violence” under the United States
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015). Mot. to Vacate, p. 3-4,
ECF No. 109. Accordingly, he requests that this Court vacate
“[a]ll enhancements under criminal history
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), mandates a fifteen-year minimum prison
sentence for anyone “who violates section 922(g) of
[Title 18] and has three previous convictions by any court
referenced in 922(g)(1) of [Title 18] for a violent felony or
serious drug offense, or both, committed on occasions
different from one another . . . .” 18 U.S.C. §
924(e). In Johnson v. United States, 135 S.Ct. 2551
(2015), the Supreme Court held that the “residual
clause” of the ACCA was unconstitutional because it
failed to provide sufficient notice of the types of
convictions covered under the ACCA. The Supreme Court issued
its opinion in Johnson on June 26, 2015. Therefore,
the deadline to file a Section 2255 motion for relief under
Johnson was June 26, 2016. However, Petitioner's
Motion was not filed in this Court until July 21, 2016,
significantly after the one-year statute of limitations had
run. Therefore, Petitioner's motion is untimely.
Petitioner's Motion was timely, he is still ineligible
for relief in light of the Johnson decision.
Although Petitioner alludes to the career offender guidelines
in his Motion to Vacate, he was not sentenced as a career
offender. Petitioner's offense level was 27, with a
criminal history category of V. Statement of Reasons, ECF No.
65 (Sealed). The Presentence Report does not indicate that
any sentencing enhancements were applied to Petitioner's
offense level based on criminal history, and the Guideline
Provisions paragraph does not mention the career offender
guidelines or the Armed Career Criminal Act. See
Presentence Report, p. 4-5, 10. Accordingly, the
Johnson decision is inapplicable to Petitioner's
case, and his Motion must fail.
reasons stated herein, Petitioner's Motion to Vacate, Set
Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255
(ECF No. 109) is DENIED, and the Government's Motion to
Dismiss Petitioner's Motion to Vacate (ECF No. 111) is
to Rule 11(a) of the Rules Governing Proceedings under 28
U.S.C. § 2255, the court is required to issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant. A certificate of appealability is a
“jurisdictional prerequisite” to an appeal from
the court's earlier order. United States v.
Hadden, 475 F.3d 652, 659 (4th Cir. 2007). A certificate
of appealability may issue “only if the applicant has
made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). Where the court
denies petitioner's motion on its merits, a petitioner
satisfies this standard by demonstrating that reasonable
jurists would find the court's assessment of the
constitutional claims debatable or wrong. See Slack v.