United States District Court, W.D. Arkansas, El Dorado Division
F. Barnes, United States District Judge.
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.
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.
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. 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.
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.
Timeliness of Petitioner's Motion
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).
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.
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]