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Blaylock v. United States

United States District Court, W.D. Arkansas, El Dorado Division

April 30, 2018

AARON MAURICE BLAYLOCK PETITIONER
v.
UNITED STATES OF AMERICA RESPONDENT

          ORDER

          Harry F. Barnes, United States District Judge.

         Before the Court is a Report and Recommendation entered on June 23, 2017, by the Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. ECF No. 179. Petitioner has filed objections. ECF No. 180. The Court finds this matter ripe for consideration.

         BACKGROUND

         On February 19, 2014, a Judgment was entered against Petitioner, sentencing him to a total of 272 months' imprisonment with credit for time served in federal custody. ECF No. 146. On February 24, 2014, Petitioner's pro se Notice of Appeal was filed. ECF No. 149. On November 20, 2014, the Eighth Circuit Court of Appeals affirmed Petitioner's Judgment. ECF No. 161-1. On December 12, 2014, the Mandate was issued. ECF No. 161.

         Petitioner filed the instant Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 on April 26, 2016. ECF No. 164. Petitioner subsequently filed a brief in support of his motion. ECF No. 172. In these documents, Petitioner argues, in relevant part, that: (1) 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of Johnson v. United States, 135 S.Ct. 2551 (2015) (ECF No. 164, p. 4), and (2) USSG § 4B1.2(a)(2)'s residual clause is unconstitutionally vague pursuant to Johnson (ECF No. 172, p. 17). Petitioner subsequently filed a supplemental brief in which he conceded, in light of the Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886 (2017), that his argument concerning USSG § 4B1.2(a)(2)'s residual clause is foreclosed.[1] ECF No. 177. On March 27, 2017, the Government filed a response, arguing that Petitioner is not entitled to section 2255 relief. ECF No. 178. On June 23, 2017, Judge Bryant issued the present Report and Recommendation. ECF No. 179. Petitioner filed objections on July 7, 2017. ECF No. 180.

         DISCUSSION

         In the present Report and Recommendation, Judge Bryant recommends that Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 164) be dismissed as untimely or, in the alternative, denied on the merits. Likewise, Judge Bryant recommends a finding that an appeal from dismissal would not be taken in good faith. The Court will first address Petitioner's objections regarding Judge Bryant's finding that Petitioner's motion is untimely. If necessary, the Court will then address Petitioner's other objections. Finally, the Court will determine whether a Certificate of Appealability (“COA”) should issue.

         I. Timeliness of Petitioner's Motion

         Title 28 U.S.C. § 2255 contains a one-year statute of limitations on motions by prisoners seeking to modify, vacate, or correct their federal sentences. Section 2255 states, in relevant part, as follows:

(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of: (1) the date on which the judgment of conviction becomes final; . . . (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[.]

28 U.S.C. § 2255(f)(1) & (3). In general, a conviction becomes final when the time to appeal expires. See Never Misses A Shot v. United States, 413 F.3d 781, 782 (8th Cir. 2005) (per curiam) (citing Fed. R. App. P. 4(b)(1)(A)). Under Federal Rule of Appellate Procedure 41(b)(1)(A), a criminal defendant must file his notice of appeal within fourteen days of the entry of judgement or the filing of the government's notice of appeal. However, if a criminal defendant appeals his conviction and sentence, the appellate court affirms the district court, and the defendant thereafter fails to file a petition for certiorari, his “judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction.” Clay v. United States, 537 U.S. 522, 525 (2003). A petition for certiorari must be filed within ninety days after entry of the appellate court's judgment. Sup. Ct. R. 13(1).

         In the instant case, because Petitioner did not file a petition for certiorari, his conviction became final ninety days after the judgment of the Eighth Circuit affirming his conviction. Accordingly, Petitioner's conviction became final on February 19, 2015. Pursuant to 28 U.S.C. § 2255(f)(1), Petitioner had until February 19, 2016, to file his section 2255 motion. However, the instant motion was not filed until April 26, 2016-more than two months after the one-year statute of limitation expired.

         However, Petitioner asserts that his motion was timely filed pursuant to 28 U.S.C. § 2255(f)(3), stating:

On June 26, 2015, the Supreme Court decided Johnson v. United States, 135 S.Ct. 2551 (2015), which held that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e), violates due process and is unconstitutionally vague. In Welch v. United States, 136 S.Ct. 1257, 1265 (2016), the Court held that Johnson announced a new substantive rule of law that applies retroactively to cases on collateral review. [Petitioner] was convicted of violating 18 U.S.C. § 924(c) for aiding and abetting the use of a firearm in connection with a “crime of violence”- specifically, the crime of aiding and abetting bank robbery in violation of 18 U.S.C. §§ 2113(a) & (d) and 2. The term “crime of violence” as defined at § 924(c)(3) contains a clause that is similar to the ACCA's residual clause. [Petitioner] submits that this clause, found at § 924(c)(3)(B), is also unconstitutionally vague under Johnson. [Petitioner] accordingly ...

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