United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE
pending before the Court is Petitioner's Motion to
Vacate, Set Aside, or Correct pursuant to 28 U.S.C. §
2255. ECF No. 46. For the reasons discussed below, the Court
preliminarily agrees with the Government that
Petitioner's § 2255 Motion is time-barred and will
grant Petitioner time to respond to the Government's
November 17, 2010, Petitioner was charged in a two-count
indictment with: possession with intent to distribute 28
grams or more of cocaine base, in violation of 28 U.S.C.
§ 841; and possession of a firearm in furtherance of a
drug trafficking crime, in violation of 18 U.S.C. §
924(c). ECF No. 6. On October 27, 2011, after Petitioner pled
guilty to both counts, the Court sentenced Petitioner to 60
months' imprisonment as to Count One of the Indictment
and 60 months consecutive as to Count Two of the Indictment,
resulting in a total sentence of 120 months'
imprisonment. ECF Nos. 34, 44. Petitioner did not appeal his
21, 2018, Petitioner filed the pending motion challenging the
validity of his § 924(c) conviction. ECF No. 46, at 1-2.
Petitioner claims that he is entitled to relief pursuant to
the United States Supreme Court's decisions in
Sessions v. Dimaya, 138 S.Ct. 1204 (2018),
Mathis v. United States, 136 S.Ct. 2243 (2016), and
Descamps v. United States, 570 U.S. 254 (2013).
Id. On October 11, 2018, the Government filed its
Response in Opposition, to which the Petitioner did not
reply. ECF No. 48.
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
does not file a direct appeal, the one-year limitations
period begins to run when the district court enters judgment
of conviction and the time to pursue an appeal lapses.
See Whiteside v. United States, 775 F.3d 180, 182-83
(4th Cir. 2014). Judgment was entered in this case on October
31, 2011. ECF No. 44. Because Petitioner did not file an
appeal, his conviction became final on November 14, 2011.
Fed. R. App. P. 4(b)(1)(A)(i). Thus, for Petitioner's
§ 2255 Motion to be timely, he must have filed his
Motion on or before November 10, 2011. However,
Petitioner's Motion was untimely because he did not file
until May 21, 2018, more than six years after the
attempts to excuse this untimely filing by using §
2255(f)(3) and invoking the decisions in Dimaya,
Mathis, and Descamps. Each of these Supreme
Court decisions is inapplicable and thus provides Petitioner
no exception to his untimeliness. First, Petitioner's
reliance on Dimaya is misplaced. In Dimaya,
the Supreme Court invalidated the residual clause of §
16(b) as unconstitutionally vague. 138 S.Ct. at 1214-15.
Petitioner argues that, in applying Dimaya, his
§ 924(c) “offense must now be ruled
[un]constitutionally vague.” ECF No. 46-1 at 1. After
Petitioner filed his § 2255 Motion, the Fourth Circuit
in United States v. Simms, 914 F.3d 229 (4th Cir.
2019), applied Dimaya and found that the residual
clause, specifically § 924(c)(3)(B), was
unconstitutionally vague. However, Petitioner pled guilty to
“possession of firearms in furtherance of a drug
trafficking crime” as defined in § 924(c)(2).
ECF No. 34 at 1 (emphasis added). Because his § 924(c)
conviction was predicated on his use of a firearm in
connection with a drug trafficking offense as identified in
§ 924(c)(2), not in connection with a crime of violence
as defined in § 924(c)(3), Dimaya and
Simms are inapposite. See United States v.
Hare, 820 F.3d 93, 105-06 (4th Cir. 2016) (upholding a
§ 924(c) conviction, despite Johnson, because
§ 924(c) “prohibits possession of a firearm in
furtherance of a crime of violence or a drug
trafficking crime”) (emphasis in original).
as for Mathis and Descamps, these decisions
“did not establish a new rule” sufficient to
grant a petitioner relief under § 2255(f)(3).
Stewart v. United States, No. ELH-17-1409, 2017 WL
2361089, at *4 (D. Md. May 31, 2017). However, even if
Mathis and Descamps were to establish a new
rule sufficient for § 2255(f)(3), just as with
Dimaya, these cases are inapposite because they deal
with crimes of violence and Petitioner's conviction here
was based on a drug trafficking crime. Accordingly,
Petitioner's § 2255 Motion is not excused under
because Petitioner makes no allegations that would excuse his
untimeliness under either § 2255(f)(2) or (f)(4), the
only way to save his § 2255 Motion is if equitable
tolling applies. See United States v. Prescott, 221
F.3d 686, 688 (4th Cir. 2000). For equitable tolling to
apply, a petitioner must demonstrate (1) that he has been
pursuing his rights diligently, and (2) extraordinary
circumstance stood in his way and prevented timely filing.
See Holland v. Florida, 560 U.S. 631, 649 (2010).
The Court acknowledges it is expected to warn a petitioner
that his case is subject to dismissal as time-barred and
provide an opportunity to respond and demonstrate that
equitable tolling is warranted. See Day v.
McDonough, 547 U.S. 198, 202 (2006); United States
v. Sosa, 364 F.3d 507 (4th Cir. 2004). Given that
expectation, the Court will order Petitioner to respond to
the Government's timeliness argument before it makes its
final decision regarding Petitioner's § 2255 Motion.
it is this 16th day of April, 2019, by the United
States District Court for the District of Maryland, hereby
that Petitioner SHALL RESPOND within 21 days of the
date of this Order to the Government's
timeliness argument asserted in the Government's Response
in Opposition to Motion to Vacate Judgment Pursuant to 28
U.S.C. § 2255 (ECF No. 48); and it is further
that the Clerk is directed TO MAIL a copy of
this Memorandum ...