Opinion
Criminal Case No.: 5:11-cr-0795-MBS
07-28-2017
Troy Demetrius Wright, Movant, v. United States of America, Respondent.
OPINION AND ORDER
Movant Troy Demetrius Wright ("Movant") is a federal inmate currently housed at FCI-Bennettsville in Bennettsville, South Carolina. On July 1, 2014, Movant, proceeding pro se, filed a motion under 28 U.S.C § 2255 to vacate, set aside, or correct sentence. ECF No. 65. On September 16, 2014, Respondent United States of America ("Respondent") moved to dismiss Movant's § 2255 motion. ECF No. 75. The court issued an order, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), on September 16, 2014, advising Movant of the motion to dismiss procedure and the possible consequences if he failed to respond adequately. ECF No. 76. Movant responded on October 3, 2014. ECF No. 78.
On January 5, 2016, Movant, proceeding pro se, filed a motion to amend or correct his § 2255 motion; however, Movant's motion to amend was unsigned and returned to him for his signature. ECF Nos. 82, 83. On January 13, 2016, Movant submitted the signed motion to amend his § 2255 motion. ECF No. 82. On March 9, 2016, Movant, now proceeding through an attorney, again moved to amend or correct his § 2255 motion. ECF No. 87. The court granted Movant's motion to amend, ECF No. 87. On May 12, 2016, Movant submitted his amended § 2255 motion. ECF No. 91. On June 13, 2016, Respondent moved for summary judgment. ECF No. 93. The court stayed the action on January 9, 2017, pending the Supreme Court's decision in in Beckles v. United States, 616 F. App'x 415 (11th Cir. 2015), cert. granted, 2016 WL 1029080 (U.S. June 27, 2016) (No. 15-8544). Now that the Supreme Court has issued an opinion in Beckles, ___ U.S. ___, 137 S. Ct. 886 (2017), the stay is lifted. Respondent filed additional arguments in support of Respondent's motion for summary judgment on March 7, 2017. ECF No. 100.
Movant's motion to amend, ECF No. 82, and his attorney's motion to amend, ECF No. 87, were both based on Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015). As the court granted ECF No. 87, Movant's pro se motion to amend has been terminated as moot.
I. RELEVANT FACTUAL BACKGROUND
On July 6, 2011, Movant was indicted on a seven-count indictment with forfeiture allegations. Count One charged Movant with felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). Count Two charged Movant with possession with intent to distribute a quantity of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Count Three charged Movant with possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Count Four charged Movant with felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). Count Five charged Movant with possession with intent to distribute a quantity of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Count Six charged Movant with possession of a firearm that was not registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. Count Seven charged Movant with possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(C).
On February 29, 2012, Movant pleaded guilty to Counts One, Two, and Three pursuant to a plea agreement. ECF No. 47, 48. The court held a sentencing hearing on July 31, 2012. ECF No. 61. The court sentenced Movant to a term of 262 months, consisting of 202 months as to Count One and Two, to run concurrently, and 60 months as to Count Three, to run consecutively. Id. The court also imposed a supervised release period of six years, consisting of five years as to Counts One and Three and six years as to Count Two, to run concurrently, with standard and special conditions, including: substance abuse treatment with testing, consumer credit or money management training, work force development or vocational rehabilitation and mental health counseling. Id. The court entered a judgment against Movant on July 31, 2012, and Counts Four through Seven were dismissed upon the government's motion. Id. Movant did not file a direct appeal.
II. ANALYSIS
The court will address the original motion and amended motion separately.
A. Original § 2255 Motion
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. §§ 2241 et seq., a one-year statute of limitations applies to motions brought under 28 U.S.C. § 2255. 28 U.S.C. § 2255(f). The one-year statute of limitations runs from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(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; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.Id. Where there is no appeal, the statute of limitations begins when the time period for filing an appeal expires, fourteen days after the entry of judgment. United States v. Osbourne, 452 F. App'x 294 (4th Cir. 2011); United States v. Sanders, 247 F.3d 139, 142 (4th Cir. 2001). The Fourth Circuit Court of Appeals states: the "conviction [becomes] final on the date upon which [a defendant] decline[s] to pursue direct appellate review." Sanders, 247 F.3d at 142; see Clay v. United States, 537 U.S. 522, 532 (2003) (holding that "for federal criminal defendants who do not file a petition for certiorari with [the Supreme Court], § 2255's one-year limitations period starts to run when the time for seeking such review expires."). Movant filed his § 2255 motion on July 1, 2014. Movant's judgment became final on August 14, 2012, when time ran out for Movant to file an appeal. Therefore, Movant's § 2255 motion is untimely under § 2255(f)(1).
Movant argues that § 2255(f)(3) applies, as the Supreme Court's ruling in Deschamps v. United States, ___ U.S. ___, 133 S. Ct. 2276 (2013), announced a newly recognized right and made that right retroactively applicable. In Teague v. United States, 489 U.S. 288, 310 (1989), the Court held that the general rule is: "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." The Supreme Court provided two instances where a rule may be applied retroactively. A rule may be retroactive if it is either a (1) new substantive rule not dictated by precedent at the time of conviction, or (2) new "watershed rule[] of criminal procedure." Welch v. United States, ___ U.S. ___, 136 S. Ct. 1257, 1264 (2016) (holding that the holding in Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), is retroactive because it announces a new substantive rule).
Movant cites Fourth Circuit Court of Appeals decisions, in particular, United States v. Hemingway, 734 F.3d 323 (4th Cir. 2013), as further support for his § 2255(f)(3) argument, ECF No. 65 at 4; however, only newly recognized rights by the Supreme Court may trigger § 2255(f)(3). See 28 U.S.C. § 2255 ("recognized by the Supreme Court"). --------
In Deschamps, the Supreme Court held that a court may not look beyond the text of an indivisible statute (a statute that does not set out one or more elements of the offense in the alternative) to conduct a document review pursuant to Shepard v. United States, 544 U.S. 13 (2005). 133 S. Ct. at 2281-82. The Court noted that "[o]ur caselaw explaining the categorical approach and its 'modified' counterpart all but resolves this case." Id. at 2283. The Court then examined the Court's jurisprudence on the issue, finding that "[u]nder our prior decisions, the inquiry" over whether a categorical or modified categorical approach would apply to a burglary statute, "is over." Id. at 2286. The Court has not held that Deschamps may be applied retroactively. The Fourth Circuit Court of Appeals has not issued an opinion on whether Deschamps is retroactive; however, each circuit that has considered the issue has found that Deschamps is not retroactive. See Stewart v. United States, No. 13-262, 2017 WL 2361089, at *5 (D. Md. May 31, 2017) (collecting cases from the Fifth, Eighth, Ninth, Tenth, and Eleventh Circuit Courts of Appeal); United States v. Odom, No. 09-501, 2015 WL 11120722, at *3 (D.S.C. June 18, 2015) (collecting decisions from other district courts within the Fourth Circuit finding Deschamps is not retroactive). As the Supreme Court has not held that Deschamps applies retroactively and the Dechamps opinion clarifies, rather than creates, a substantive rule, the court finds that § 2255(f)(3) is not applicable to this case. Accordingly, because Movant's § 2255 motion was filed more than one year after the judgment became final, his motion is time barred.
B. Amended § 2255 Motion
Movant's amended § 2255 motion asserted that under Johnson, he no longer has three predicate offenses for career offender status under the United States Sentencing Guidelines ("Sentencing Guidelines").
In Beckles, the Supreme Court held that the Sentencing Guidelines are advisory, thus not subject to void for vagueness challenge under the Fifth Amendment Due Process Clause. 2017 WL 855781, at *11. The central premise of Movant's § 2255 motion is that U.S.S.G § 4B1.2(a)(2)'s residual clause is void for vagueness. Cf. Johnson, 135 S. Ct. at 2563. The Supreme Court rejected that argument in Beckles. Movant concedes that his amended petition is controlled by the outcome of Beckles. ECF No. 101. Accordingly, Movant's § 2255 motion lacks merit and is denied.
III. CONCLUSION
For the foregoing reasons, Respondent's motion for summary judgment is GRANTED and Movant's § 2255 motion is DENIED. Grounds One, Two, and Three of Movant's § 2255 motion are dismissed with prejudice. Movant's amended § 2255 motion based on Johnson is dismissed without prejudice.
CERTIFICATE OF APPEALABILITY
A certificate of appealability may issue only if the applicant has made a substantial showing of denial of a constitutional right. 28 U.S.C § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable jurists would find this court's assessment of his constitutional claims debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See Miller-el v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee 252 F.3d 676, 683 (4th Cir. 2001). In this matter, the legal standard for the issuance of a certificate of appealability has not been met. Therefore, the court denies a certificate of appealability.
IT IS SO ORDERED.
s/ Margaret B. Seymour
Honorable Margaret B. Seymour
Senior United States District Judge July 28, 2017
Columbia, South Carolina