Opinion
CIVIL ACTION NO. 4:16cv112 CRIMINAL ACTION NO. 4:12cr24
10-12-2016
DAVID LAMAR ANDREWS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
David Lamar Andrews ("Petitioner") has submitted a Motion pursuant to Title 28, United States Code, Section 2255 to Vacate Sentence by a Person in Federal Custody ("§ 2255 Motion"). Having thoroughly reviewed the Parties' filings in this case, the Court finds this matter is ripe for judicial determination. For the reasons set forth below, Petitioner's § 2255 Motion is DENIED.
I. FACTUAL AND PROCEDURAL HISTORY
On March 13, 2012, a Grand Jury in the Eastern District of Virginia indicted Petitioner with six counts. ECF No. 1. On June 5, 2012, Petitioner pled guilty to Count One and Count Five of the indictment. ECF No. 42. Count One charged Petitioner with Conspiracy to Possess with Intent to Distribute more than 28 grams of Cocaine Base, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and 841(b)(1)(A) and (B). ECF No. 43. Count Five charged Petitioner with Possession of a Firearm in Furtherance of a Drug Trafficking Crime in violation of 18 U.S.C. § 924(c)(1). Id. On November 20, 2012, the Court adjudged Petitioner and found him guilty of Count One and Count Five, and sentenced him to a term of 168 months for Count One and 60 months on Count Five, all to be served consecutively. ECF 71.
On April 22, 2013, Petitioner requested a copy of the docket sheet and sentencing transcript. ECF No. 84. Petitioner filed no further motions until April 2, 2015, where he requested counsel appointment to evaluate his eligibility for a sentence reduction, pursuant to 18 U.S.C. § 3582(c). ECF No. 89. On April 3, the Court granted Petitioner's Motion to appoint counsel. ECF 90. On August 28, 2015, the Court Granted Petitioner's motion for a sentence reduction. ECF No. 97.
On June 29, 2016, Petitioner filed a pro se Motion to Vacate and Remand his sentence based on the Supreme Court's ruling in Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015), and Welch v. United States, ___ U.S. ___, 136 S. Ct. 1257 (2016). ECF No. 98. Petitioner also requested an extension to file a successive Motion to Vacate, Set Aside, or Correct his sentence under 28 U.S.C. § 2255(f)(3)), based on the Supreme Court's recognition of a new right made retroactively applicable to cases on collateral review. ECF No. 98. On July 1, the Court Ordered that the Federal Public Defender be appointed to represent the Petitioner in this matter. ECF No. 99.
On August 15, 2016, Respondent filed a Response to Petitioner's challenge to his sentence under 18 U.S.C. § 924(c). ECF No. 100. On August 15, 2016, Petitioner, through legal counsel, also filed a response stating, "Undersigned counsel has reviewed Petitioner's pro se motion, the Presentence Report ("PSR"), docket sheet, and other relevant documents. After evaluation of the Petitioner's pro se motion pursuant to § 2255 seeking relief under Johnson, undersigned counsel rests on the Petitioner's motion and submits no additional arguments at this time." ECF No. 101.
II. LEGAL STANDARD
When a petitioner in federal custody wishes to collaterally attack his sentence or conviction, the appropriate motion is a § 2255 motion. United States v. Winestock, 340 F.3d 200, 203 (4th Cir. 2003). Section 2255 of Title 28 of the United States Code governs post-conviction relief for federal prisoners. It provides in pertinent part:
A prisoner in custody under sentence of a court established by Act of Congress 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).
In a proceeding to vacate a judgment of conviction, the petitioner bears the burden of proving his or her claim by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). Motions under § 2255 "will not be allowed to do service for an appeal." Sunal v. Large, 332 U.S. 174, 178 (1947). For this reason, issues already fully litigated on direct appeal may not be raised again under the guise of a collateral attack. Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976).
When deciding a § 2255 motion, the Court must promptly grant a hearing "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). Whether a hearing is mandatory for a § 2255 Motion and whether petitioner's presence is required at the hearing is within the district court's sound discretion and is reviewed for abuse of discretion. Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970) (citing Machibroda v. United States, 368 U.S. 487 (1962)).
III. DISCUSSION
A § 2255 motion is subject to a one-year statute of limitations. 28 U.S.C. § 2255(f). The beginning date for that one-year limitations period is not universal, but is dependent upon the motion's allegations. Petitioner's § 2255 Motion is not timely under § 2255(f)(1) because he filed more than one year after his judgment of conviction became final. The motion is not timely under § 2255(f)(2) because Petitioner alleges no unlawful governmental action that prevented him from filing the § 2255 Motion. The motion is not timely under § 2255(f)(4) because Petitioner provides no evidence of newly discovered facts that would affect his sentence.
Petitioner argues that his motion is timely under 2255(f)(3), which states that the one-year time limit begins on "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." 28 U.S.C. § 2255(f)(3).
"Thus, to obtain the benefit of the limitations period stated in § 2255(f)(3), [a petitioner] must show: (1) that the Supreme Court recognized a new right; (2) that the right 'has been ... made retroactively applicable to cases on collateral review'; and (3) that he filed his motion within one year of the date on which the Supreme Court recognized the right." United States v. Mathur, 685 F.3d 396, 398 (4th Cir. 2012) (quoting § 2255(f)(3)). The threshold issue for the Court, then, is whether this motion is timely under § 2255(f)(3). The core question of this timeliness inquiry is whether Petitioner is asserting a right that the Supreme Court has recognized.
It is appropriate to equate the term "right," as used in § 2255(f)(3), with the term "rule," as used in the Supreme Court and Courts of Appeals cases cited in this opinion. See United States v. Cuong Gia Le, No. 1:03-cr-48-TSE, ECF No. 691 at 13-16 (E.D. Va. Sept. 8, 2016) (Ellis, J.). Rather than alternate between the two terms, this opinion will use the term "rule" throughout, with the intent that it be read as synonymous with the "right" discussed in § 2255(f)(3).
"[A] case announces a new rule when it breaks new ground . . . . To put it differently, a case announces a new rule if the result was not dictated by [existing precedent]." Teague v. Lane, 489 U.S. 288, 301 (1989) (emphasis in original). A certain result is "dictated" by existing precedent if that result is "apparent to all reasonable jurists." Lambrix v. Singletary, 520 U.S. 518, 528 (1997). Similarly, the Fourth Circuit's "new rule" test says a rule is new unless it would be "objectively unreasonable" under existing law "for a judge to reach a contrary result." O'Dell v. Netherland, 95 F.3d 1214, 1223-24 (4th Cir. 1996). "A case does not 'announce a new rule, [when] it [is] merely an application of the principle that governed' a prior decision to a different set of facts." Chaidez v. United States, 133 S. Ct. 1103, 1107 (2013) (quoting Teague, 489 U.S. at 307).
A. The Johnson Decision
The Supreme Court recognized a new rule in Johnson v. United States. In Johnson, the Court held that the residual clause of 18 U.S.C. 924(e)(2)(B)(ii), part of the Armed Career Criminal Act (ACCA), was unconstitutionally vague. Johnson, 135 S. Ct. at 2557-58. In Welch v. United States, 136 S. Ct. 1257 (2016), the Court made that rule retroactive to cases on collateral review. Welch, 136 S. Ct. at 1265. The question raised by the instant motion is whether § 924(c)(3)(B) is part of the rule recognized in Johnson and made retroactive in Welch.
Petitioner argues that the similarities in language between the ACCA residual clause and § 924(c)(3)(B) are such that the rule applicable to the former necessarily governs the latter. Before the Supreme Court delivered its opinion in Johnson, the U.S. Solicitor General made this same argument in a Supplemental Brief to the Court. Suppl. Br. Resp't at 22, Johnson v. United States, 135 S. Ct. 2551 (2015) (No. 13-7120). The brief listed dozens of state and federal laws that employ language similar to the ACCA's residual clause, including § 924(c)(3)(B). Id. at la. The purpose of this list was to encourage the Supreme Court to uphold the constitutionality of the ACCA residual clause, warning that a contrary decision would effectively render void the myriad other laws containing similar language, including § 924(c)(3)(B). Id. at 22-26. The Court's opinion in Johnson flatly rejected this argument:
The Government and the dissent next point out that dozens of federal and state criminal laws use terms like "substantial risk," "grave risk," and "unreasonable risk," suggesting that to hold the residual clause unconstitutional is to place these provisions in constitutional doubt. . . . Not at all.Johnson, 135 S. Ct. at 2561.
The Court confirmed this again in Welch, saying, "The Court's analysis in Johnson thus cast [sic] no doubt on the many laws that 'require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion.'" Welch, 136 S. Ct. at 1262 (quoting Johnson, 135 S. Ct. at 2561). To meet the requirements of § 2255(f)(3), Petitioner's claim must be governed by a rule that the Supreme Court has recognized. When the Court created a new rule governing the ACCA residual clause, it also took care to clarify that this new rule does not put similar laws, like § 924(c)(3)(B), "in constitutional doubt." The Johnson and Welch opinions thwart Petitioner's argument that the rule announced in Johnson necessarily invalidates § 924(c)(3)(B) as well.
B. Inconsistency among Lower Courts' Decisions
The disagreement among the lower courts regarding Johnson's application to similar laws is further evidence that the Supreme Court's rule in Johnson does not invalidate § 924(c)(3)(B). To successfully claim relief under § 2255(f)(3), Petitioner would need to show that his claim is covered by the rule recognized in Johnson, and that he is not advocating for some new rule. A rule has been recognized if it dictates a result that is "apparent to all reasonable jurists" (Lambrix, 520 U.S. at 528); in other words, a rule is recognized if it would be "objectively unreasonable" for a judge to decide contrary to that rule (O'Dell, 95 F.3d at 1223-24). If this standard is not met, the rule being cited is not a recognized rule and is, therefore, a new rule. Additionally, while the Sixth Circuit has held § 16(b) unconstitutional in light of Johnson, it has distinguished § 16(b) from § 924(c)(3)(B), despite the shared identical language, and has upheld the latter as constitutional. Shuti v. Lynch, 828 F.3d 440, 441 (6th Cir. 2016); see also United States v. Taylor, 814 F.3d 340, 379 (6th Cir. 2016).
The Fourth Circuit, noting this disagreement among the circuit courts, declined to decide whether Johnson invalidates § 924(c)(3)(B), saying that such a claim by a petitioner "would not survive plain error review." United States v. Graham, 824 F.3d 421, 424 n.1 (4th Cir. 2016). The Fourth Circuit reasoned, "'An error is plain if the settled law of the Supreme Court or this circuit establishes that an error has occurred.' . . . This court has not yet addressed this claim, and our sister circuits have divided on the issue." Id. (quoting United States v. Carthorne, 726 F.3d 503, 516 (4th Cir. 2013)). The Fourth Circuit's decision and reasoning imply that Petitioner's claim is not settled law, neither in the Supreme Court nor in this circuit, in addition to being a point of disagreement among the other circuit courts.
While it is true that "[judicial] disagreement alone does not defeat a plaintiff's claim in every instance," it is also true that "judicial disagreement about the existence of a [rule] is certainly a factor we consider in determining whether a [rule] has been clearly established." Owens v. Baltimore City State's Att'ys Office, 767 F.3d 379, 399 (4th Cir. 2014).
The constitutionality of § 924(c)(3)(B) is not affected by the rule recognized in Johnson. Therefore, Petitioner's claim does not meet the timeliness requirements under § 2255(f)(3). In two cases in the Eastern District of Virginia, the Court has recently reached the same result on this issue, providing further support for the Court's decision. See United States v. Cuong Gia Le, No. 1:03-cr-48-TSE-1, ECF No. 691 (E.D. Va. Sept. 8, 2016) (Ellis, J.); see also Gray v. United States, No. 4:08-cr-25-RBS-FBS, ECF No. 78 (E.D. Va. Sept. 1, 2016) (Smith, C.J.).
IV. CONCLUSION
For the reasons set forth above, the Court finds that Petitioner is not entitled to relief. Accordingly, Petitioner's § 2255 Motion is DENIED.
Additionally, Petitioner has not set forth a specific issue that demonstrates a substantial showing of a denial of a constitutional right. Therefore, pursuant to 28 U.S.C. § 2253(c)(2), a Certificate of Appealability is DENIED.
The Court DIRECTS the Clerk to send a copy of this Order to Petitioner and to the United States Attorney.
IT IS SO ORDERED. Norfolk, Virginia
October 12, 2016
/s/_________
Raymond A. Jackson
United States District Judge