United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
W. TITUS UNITED STATES DISTRICT JUDGE.
before the Court are Petitioner's (1) Application for
Leave to File a Second or Successive Section 2255 Motion
(“Application for Leave”) (ECF No. 178), and (2)
Motion to Vacate, Set Aside, or Correct Sentence Under 28
U.S.C. § 2255 (“Motion to Vacate”) (ECF No.
29, 2010, Petitioner's two co-defendants entered an
M&T Bank brandishing firearms and wearing disguises and
took approximately $13, 560.00 from the bank. ECF No. 97-1.
When the co-defendants exited the bank, they entered a
waiting motor vehicle driven by Petitioner. Id.
Later that same day, a law enforcement officer stopped the
vehicle for a traffic violation. Id. Petitioner was
apprehended at the scene. Id. Officers recovered the
firearms, money, and disguises from the automobile.
13, 2011, Petitioner pleaded guilty to one count of armed
bank robbery, in violation of 18 U.S.C. § 2113(a), (d),
and 18 U.S.C. § 2. ECF Nos. 96, 97. Application of the
United States Sentencing Guidelines (“U.S.S.G” or
“Guidelines”) in the Presentence Report
(“PSR”) produced a recommended sentence of
210-262 months imprisonment. PSR at 20. This recommendation
was based on a total offense level of 32 and a criminal
history category of VI. PSR ¶¶ 26, 61. At
sentencing on October 20, 2011, the Court adopted the PSR
recommendations without change and sentenced Petitioner to
250 months imprisonment. ECF No. 121. Petitioner took a
direct appeal to the Fourth Circuit, which affirmed this
Court's judgment on December 28, 2012. ECF No. 151.
27, 2016, Petitioner filed his Application for Leave and
Motion to Vacate. ECF Nos. 178, 179.
Application for Leave
Application for Leave, Petitioner asks for authorization to
file a second or successive motion under § 2255. ECF No.
178 at 5. His filing is addressed to the Fourth Circuit, but
was filed in this Court. See Id. at 1. A petitioner
is required to receive pre-filing authorization from the
appropriate court of appeals before a district court may
consider a motion under § 2255 where the petitioner has
already filed, and the district court has already ruled on, a
previous motion under § 2255. 28 U.S.C. §§
2244(b)(3)(A), 2255(h); Felker v. Turpin, 518 U.S.
651, 657 (1996). Absent pre-filing authorization, a district
court would lack jurisdiction to consider the successive
motion. United States v. Winestock, 340 F.3d 200,
205 (4th Cir. 2003).
Petitioner's Application for Leave, an examination of the
dockets of this Court reveals that Petitioner has, in fact,
never filed a motion under § 2255. His Application for
Leave, therefore, even if it were filed in the proper court,
is unnecessary. Accordingly, the Court will deny it as moot.
Motion to Vacate
Motion to Vacate, Petitioner asserts that his “sentence
under 18 U.S.C. § 924(c)(1)(A), in relation to a crime
of violence should be vacated and set aside” based on
the Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015). ECF No. 179 at 2.
Petitioner argues that his conviction under § 924(c)
should be vacated because armed bank robbery, the alleged
predicate offense upon which the § 924(c) conviction was
based, is no longer a crime of violence under either the
residual clause or the force clause of § 924(c).
Id. at 4. Petitioner's Motion, however, is both
untimely and lacks merit.
under § 2255 are subject to a one-year statute of
limitations, which begins to run from the date on which the
judgment of conviction becomes final, unless one of the three
exceptions applies as provided in §
2255(f)(2)-(4). 28 U.S.C. § 2255(f). When a defendant
files a direct appeal, the one-year limitations period begins
to run when the time for filing a petition for certiorari
with the U.S. Supreme Court expires, which is 90 days after
the entry of the judgment of the court of appeals. See
Clay v. United States, 537 U.S. 522, 532 (2003); Sup.
Ct. R. 13.1. Because the Fourth Circuit affirmed this
Court's judgment on December 28, 2012, the limitations
period for filing his Motion to Vacate ended on March 28,
2014. Petitioner, however, did not file his Motion to Vacate
until June 27, 2016, more than two years after the deadline.
appears that Petitioner would attempt to excuse the
untimeliness of his Motion to Vacate under § 2255(f)(3)
by invoking Johnson. See ECF No. 179.
Johnson, though, is inapplicable to Petitioner's
case for a number of reasons. First, in Johnson, the
Supreme Court held that the residual clause of the
“crime of violence” definition in the Armed
Career Criminal Act (“ACCA”) was
unconstitutionally vague. 135 S.Ct. at 2557. Petitioner,
however, was not sentenced under the ACCA. Second,
Petitioner's alleged predicate crime of armed bank
robbery is a crime of violence under the “force
clause” of 18 U.S.C. § 924(c)(3), not the
residual clause. In re Hubbard, 825 F.3d 225, 229
(4th Cir. 2016) (citing United States v. McNeal, 818
F.3d 141, 151-57 (4th Cir. 2016)). Third, even if Petitioner
was sentenced under a residual clause in the Guidelines,
which according to his PSR he was not, any challenge under
Johnson is foreclosed by the Supreme Court's
decision in Beckles v. United States, 137 S.Ct. 886,
890 (2017), which held that the Guidelines are not subject to
the void-for-vagueness doctrine.
even if Petitioner's untimeliness was excused under
Johnson, Petitioner was not charged, convicted, or
sentenced under § 924(c). See ECF Nos. 1, 96,
151. He also did not receive any type of sentence enhancement
for which his armed robbery conviction would have been used
as a predicate offense. The claims he has raised, therefore,
are wholly meritless, ...