United States District Court, D. Maryland
William M. Nickerson Senior United States District Judge
pleading guilty to a charge of bank robbery, Petitioner Brian
Louis Clark was sentenced on May 5, 2011, to a term of
imprisonment of 120 months. While the Petitioner was
designated a “Career Offender” under the advisory
United States Sentencing Guidelines (U.S.S.G.), the Court
sentenced him below the advisory guideline range. Petitioner
did not appeal his conviction or sentence.
20, 2016, the Office of the Federal Public Defender (OFPD)
filed a motion under 28 U.S.C. § 2255 on behalf of
Petitioner under the belief that the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015), might impact the constitutionality of his sentence.
In Johnson, the Supreme Court struck down the
residual clause in the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e)(2)(B)(ii), as unconstitutionally vague.
Less than a year later, the Supreme Court in Welsh v.
United States, 136 S.Ct. 1257 (2016), held that
Johnson had announced a new substantive rule of
constitutional law that applies retroactively on collateral
review of ACCA-enhanced sentences. Because the “Career
Offender” provision in the U.S.S.G. included the
identical residual clause as the ACCA, it was thought that it
too would be held to be void for vagueness. The Supreme
Court, however, on March 6, 2017, decided in Beckles v.
United States, 137 S.Ct. 886 (2017), that the advisory
sentencing guidelines were not subject to such a challenge.
about April 12, 2017, after the OFPD informed him that it
would no longer be able to represent him in light of the
Beckles decision, Petitioner filed a “Motion
to Proceed Pro Se and Preserve and Amend Pending 2255 under
Mathis.” ECF No. 25. On April 24, 2017, the
Court issued a Letter Order reserving its ruling on
Petitioner's motion to amend and granting him 20 days to
either withdraw his § 2255 motion, or file a motion to
amend it setting out the basis for his requested relief. ECF
No. 26. The Court noted in that Letter Order that the
decision referenced in Petitioner's motion, Mathis v.
United States, 136 S.Ct. 2243 (2016), addressed sentence
enhancement under the ACCA, not the advisory sentencing
guidelines. Furthermore, the Supreme Court stated clearly in
Mathis that it was not setting out any newly
recognized right and, thus, this decision would not permit
Petitioner to avoid 28 U.S.C. § 2255(f)'s one year
limitations period for bringing a motion under §
4, 2017, Petitioner filed his amended motion under 28 U.S.C.
§ 2255. ECF No. 27. In arguing that his motion is not
time barred, Petitioner cites Molina-Martinez v. United
States, 136 S.Ct. 1338 (2016), for the proposition that
“a miscalculation of a correct guideline range does
result in clear error and Clark is entitled to be resentenced
to his correct guideline range.” ECF No. 27.
Molina-Martinez, however, concerned the application
of Rule 52 of the Federal Rules of Civil Procedure and the
evidentiary burden facing a defendant in the context of a
direct appeal, not timeliness under § 2255(f).
also mentions several other decisions in his amended motion:
United States v. Green, 16-cv-502-pp, 2017 WL 268315
(E.D. Wisc. Feb 3, 2017); United States v. Lowery,
CV-16-1808-PHX-SRB, 2017 U.S. Dist. LEXIS 14765 (D. Ariz.
Feb. 1, 2017); United States v. Savage, LA CR
08-00258-VBF, 2017 WL 120008 (C.D. Cal. Jan. 12, 2017); and
United States v. Boone, 2:12-cr-162-12l, 2016 WL
3057655 (W.D. Pa. May 31, 2016). All of these decisions,
however, predate Beckles and were decided under the
belief that the rationale of Johnson would also be
applied to the U.S.S.G.'s career offender provision.
Since Beckles was decided otherwise, these decisions
provide Petitioner no support.
Court finds that Petitioner's § 2255 motion is
clearly time barred. Petitioner was sentenced on May 5, 2011,
and thus the one year limitations period of § 2255(f)
ran on May 5, 2012. Petitioner has pointed to no newly
recognized right, made retroactively applicable to cases on
collateral review, that would revive his ability to file his
the Court will dismiss Petitioner's motion under §
2255, it must determine whether a certificate of
appealability should issue. A certificate of appealability
shall not issue absent “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). A petitioner satisfies this standard by
demonstrating that reasonable jurists would find that an
assessment of the constitutional claims is debatable and that
any dispositive procedural ruling dismissing such claims is
likewise debatable. Miller-El v. Cockrell, 537 U.S.
322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473,
484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th
Cir. 2001). As reasonable jurists would not find this
Court's dismissal of petitioner's Section 2255 motion
debatable, a certificate of appealability will not issue.
separate order consistent with this memorandum will issue.
 28 U.S.C. § 2255(f) provides that
a one year period of limitations applies to motions under
§ 2255 and begins to run from the latest of -
(1) the date on which the judgment of conviction
(2) the date on which the impediment to making a
motion created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a ...