United States District Court, D. Maryland
Richard D. Bennett United States District Judge
pro se Petitioner Kendell Richburg
(“Petitioner” or “Richburg”) pled
guilty before this Court to Counts 1 and 2 of a Superseding
Criminal Information (ECF No. 17) charging him with conspiracy
to distribute 100 grams or more of heroin, in violation of 21
U.S.C. § 846 (Count 1) and possession of a firearm in
furtherance of a “drug trafficking crime, ” in
violation of 18 U.S.C. § 924(c) (Count 2). See
J. p.1, ECF No. 28. On October 24, 2013, this Court sentenced
Richburg to 36 months imprisonment as to the drug conspiracy
charge (Count 1) and 60 months imprisonment as to the firearm
possession charge (Count 2) for a total of 96 months
imprisonment, with credit for time served since January 18,
2013. Id. at 2. Subsequently, this Court granted him
a sentence reduction on the drug conspiracy charge from 36
months to 29 months imprisonment pursuant to 18 U.S.C. §
3582(c)(2), in light of Amendment 782 to the United States
Sentencing Guidelines, which lowered the drug quantity
tables. See Order, ECF No. 36. Now, over three years
after this Court's entry of Judgment, Petitioner has
filed the pending Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 38) in
which he argues, inter alia, that he is entitled to
a further sentence reduction in light of the United States
Supreme Court's intervening decision in Johnson v.
United States, 135 S.Ct. 2551 (2015). Having reviewed
the parties' submissions, this Court finds that no
hearing is necessary. See Local Rule 105.6 (D. Md.
2016). For the reasons stated below, Petitioner's Motion
to Vacate, Set Aside, or Correct Sentence (ECF No. 38) is
DENIED as untimely. Even if the Motion were timely, it would
still be denied because Johnson has no bearing on
Petitioner's conviction or sentence.
28 U.S.C. § 2255, a prisoner in custody may seek to
vacate, set aside or correct his sentence where: (1)
“the sentence was imposed in violation of the
Constitution or laws of the United States, ” (2) the
court lacked “jurisdiction to impose the sentence, . .
. [(3)] the sentence was in excess of the maximum authorized
by law, or [(4) the sentence] is otherwise subject to a
collateral attack.” 28 U.S.C. § 2255(a). “If
the court finds . . . that the sentence imposed was not
authorized by law or otherwise open to collateral attack, or
that there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the
judgment vulnerable to collateral attack, the court shall
vacate and set the judgment aside and shall discharge the
prisoner or resentence him or grant a new trial or correct
the sentence as may appear appropriate.” 28 U.S.C.
The Petitioner's Motion to Vacate is
one-year statute of limitations applies to Section 2255
petitions. See 28 U.S.C. § 2255(f). The
limitations period runs from the latest of: (1) the date on
which the judgment of conviction becomes final; (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 motion by such governmental action; (3) 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; or (4) the date on which the facts
supporting the claim or claims presented could have been
discovered through the exercise of due diligence.
was entered in Richburg's case on October 24, 2013.
See J., ECF No. 28. Although this Court subsequently
granted him a sentence reduction under 18 U.S.C. §
3582(c)(2) in November of 2015, see Order, ECF No.
36, a modification of sentence is not a full resentencing.
See Dillon v. United States, 569 U.S. 817, 825
(2010). Section 3582 provides that “[n]ot with standing
the fact that a sentence to imprisonment can subsequently be
modified pursuant to [the provisions of Section 3582(c)], a
judgment of conviction that includes such a sentence
constitutes a final judgment for all other purposes.”
§ 3582(b)(1). Accordingly, a sentence modification
pursuant to 18 U.S.C. § 3582(c)(2) does not reset the
statute of limitations for Section 2255 motions. United
States v. Jones, 796 F.3d 483, 486 (5th Cir. 2015).
Therefore, Richburg's pending Motion, filed December 1,
2016, over three years after this Court's entry of
Judgment, is untimely.
although his claim is completely without merit, Petitioner
argues that he is entitled to a further sentence reduction in
light of the United States Supreme Court's intervening
decision in Johnson v. United States, 135 S.Ct. 2551
(2015). Under Section 2255(f), a fresh one-year statute of
limitations runs from the date on which a new right is
initially recognized by the Supreme Court, if that right has
been made retroactively applicable to cases on collateral
review. Johnson has been made retroactively
applicable to cases on collateral review. See Welch v.
United States, 136 S.Ct. 1257 (2016). However,
Petitioner filed the pending Motion to Vacate over one year
after the Supreme Court issued the Johnson decision
on June 26, 2015. Although the one year statute of
limitations is subject to equitable tolling, see
Whiteside v. United States, 775 F.3d 180, 184 (4th Cir.
2014), Petitioner has set forth no grounds for equitable
tolling. Accordingly, his motion is DENIED as untimely.
The Johnson Decision Has No Bearing on Petitioner's
Conviction or Sentence
Petitioner's Section 2255 motion was not time-barred, it
would still be denied. Documents filed pro se are to
be “liberally construed” and are “held to
less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007). Even construing the Petitioner's filings
liberally, he has stated no grounds for relief under 18
U.S.C. § 2255 because the Johnson decision has
no bearing on his case.
“armed career criminal” under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e),
is an individual who violates 18 U.S.C. § 922(g) and who
has three prior convictions for either a “violent
felony” or a “serious drug offense, ” or
both. Pursuant to 18 U.S.C. § 924(e)(1), a person who
qualifies as an armed career criminal under the ACCA is
subject to a mandatory term of imprisonment of not less than
fifteen years. In Johnson v. United States, 135
S.Ct. 2551 (2015), the United States Supreme Court held that
the “Residual Clause” of the Armed Career
Criminal Act's definition of “violent felony”
was unconstitutionally vague because its application was too
“wide-ranging” and “indeterminate.”
Johnson, 135 S.Ct. at 2557. After Johnson,
an offense can only qualify as a “violent felony”
under the ACCA if it falls within the ambit of the
“Force Clause” or is one of the ACCA's
enumerated offenses. However, the Johnson decision
had no impact on “serious drug offenses” under
Johnson has no impact on “serious drug
offenses” under the ACCA, the United States Court of
Appeals for the Fourth Circuit and this Court have squarely
established that Johnson has no bearing on 18 U.S.C.
924(c) firearm possession charges in furtherance of a
“drug trafficking” offense. See, e.g.,
United States v. Richardson, 653 F. App'x. 209,
210 n.* (4th Cir. 2016) (“Because the conviction
underlying [defendant's] 18 U.S.C. § 924(c) (2012)
conviction was a drug offense rather than a crime of violence
. . . Johnson is in apposite, and he is entitled to
no relief.”); United States v. Hare, 820 F.3d
93, 106 (4th Cir. 2016); Ramos v. United States, No.
PJM 16-2021, 2017 WL 530437, at *2 (D. Md. Feb. 7, 2017);
see also Norrell v. United States, No.
7:16-CV-238-FL, 2017 WL 2312892, at *2 (E.D. N.C. May 26,
2017). Although the question of whether Johnson
applies to the definition of “crime of violence”
under 18 U.S.C. § 16, which is similarly worded to the
definition of “crime of violence” under Section
924(c), is currently pending before the United States Supreme
Court in Sessions v. Dimaya, 803 F.3d 1110 (9th Cir.
2015), cert. granted, 85 U.S.L.W. 3114
(U.S. Sept. 29, 2016) (No. 15-1498), whether Johnson
applies to Section 924(c) “drug trafficking”
offenses is not before the Court in Dimaya.
Accordingly, the outcome of that case will have no effect on
the Petitioner's conviction. The Petitioner was not
sentenced under the ACCA. ...