Summary
holding that 2010 Johnson "concerned the interpretation of the ACCA and did not announce a new rule of constitutional law"
Summary of this case from Rainey v. United StatesOpinion
16-765
04-19-2016
Charles Belk, Petitioner, v. United States of America, Respondent.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th day of April, two thousand sixteen. Present: Robert D. Sack, Richard C. Wesley, Gerard E. Lynch, Circuit Judges, Petitioner moves for leave to file a successive 28 U.S.C. § 2255 motion challenging his sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). He argues that, in light of the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015), his New York State robbery convictions no longer qualify as predicate offenses for ACCA purposes. Petitioner also moves for leave to file an oversized reply to the Government's opposition, and to do so out of time. Upon due consideration, it is hereby ORDERED that the motion to file an oversized reply is GRANTED, and the motion for leave to file a successive 28 U.S.C. § 2255 motion is DENIED because Petitioner has not satisfied the criteria set forth in 28 U.S.C. § 2255(h). Even assuming that Johnson announced a new rule of constitutional law made retroactive by the Supreme Court to cases on collateral review, Petitioner has not made a prima facie showing that the new rule would entitle him to any relief. See 28 U.S.C. § 2244(b)(3)(C) (requiring a prima facie showing); see also Bell v. United States, 296 F.3d 127, 128 (2d Cir. 2002). There is no evidence that Petitioner's sentence was enhanced under the provision of the ACCA that was found unconstitutional in Johnson. In any event, at the time of his sentencing, it was clearly established in this Circuit that Petitioner's robbery convictions qualified as ACCA predicates under § 924(e)(2)(B)(i), which was not invalidated by Johnson. See United States v. Brown, 52 F.3d 415, 425-26 (2d Cir. 1995); Johnson, 135 S. Ct. at 2563 (stating that Johnson "does not call into question . . . the remainder of the [ACCA's] definition of a violent felony."). Petitioner argues that his robbery convictions cannot serve as predicate offenses under § 924(e)(2)(B)(i) because they do not categorically involve the degree of "violent" force necessary under another Supreme Court decision, Johnson v. United States, 559 U.S. 133, 140 (2010). This case, however, concerned the interpretation of the ACCA and did not announce a new rule of constitutional law. Additionally, there is nothing in the 2015 Johnson decision, or the procedural history of Petitioner's case, that permits him to now raise a claim under the 2010 Johnson case. Consequently, it cannot serve as the basis for Petitioner's motion. See 28 U.S.C. § 2255(h)(2).
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk