Opinion
No. 2:12-CR-27-BO-2 No. 2:17-CV-16-BO
07-21-2017
JIMMY CHESSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
This cause comes before the Court on petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. [DE 114]. The government has moved to dismiss the petition, [DE 123], and the matter is ripe for disposition. For the reasons discussed below, the government's motion to dismiss is granted and petitioner's § 2255 motion is dismissed.
BACKGROUND
On March 21, 2013, petitioner pleaded guilty, pursuant to a written plea agreement, to two counts of armed bank robbery and aiding and abetting, in violation of 18 U.S.C. §§ 2113(a), (d) and 2 (Counts One and Three); and one count of using, carrying, and brandishing a firearm during and in relation to a crime of violence and aiding and abetting, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2 (Count Two). [DE 68]. On August 22, 2013, petitioner was sentenced to a total of 194 months' imprisonment with credit for time served. [DE 109]. Petitioner did not appeal his judgment.
On April 17, 2017, petitioner filed a motion to vacate under 28 U.S.C. § 2255. [DE 114]. Petitioner alleges a miscalculation of his guidelines range and that his conviction under 18 U.S.C. § 924(c) was improper in light of Johnson v. United States, 135 S. Ct. 2551 (2015). [DE 114-1]. The government responded, arguing that the motion should be dismissed for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. [DE 123].
DISCUSSION
A Rule 12(b)(6) motion must be granted if the pleading fails to allege enough facts to state a claim for relief that is facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). See also Rule 12, Rules Governing Section 2255 Proceedings (Rules of Civil Procedure apply to section 2255 proceedings).
A motion to vacate under § 2255 must be filed within one year of the latest of four triggering events: (1) the date the judgment of conviction becomes final; (2) the date on which an impediment to making a motion that is created by the government is removed; (3) the date the Supreme Court initially recognizes a right that is made retroactively applicable to cases on collateral review; or (4) the date on which new facts are discovered through the exercise of due diligence to support a claim. 28 U.S.C. § 2255(f)(1)-(4).
In Johnson v. United States, the Supreme Court addressed the constitutionality of the residual clause of ACCA's violent felony definition, which defines a violent felony to' include one which "otherwise involves that presents a serious potential risk of physical injury to another." 135 S. Ct. 2557. The Court held that the residual clause is unconstitutionally vague and that to increase a defendant's sentence under that clause denies the defendant due process of law. Id. at 2557. In Welch v. United States, the Supreme Court held that Johnson announced a substantive rule that applies retroactively on collateral review. 136 S. Ct. 1257 (2016).
Petitioner's judgment became final on August 22, 2013. The Supreme Court decided Johnson v. United States on June 26, 2015, and, accordingly, the date by which a petitioner was required to file a § 2255 motion asserting relief under that decision was June 26, 2016. Petitioner did not file the instant § 2255 motion until April 17, 2017, more than three years after his judgment became final and more than a year after Johnson was decided. Therefore, petitioner's motion must be dismissed as untimely.
Additionally, petitioner's plea agreement waived his right to challenge the calculation of his guidelines range, [DE 68 at 1], and his claim that his § 924(c) conviction was improper is without merit because the underlying conviction is armed bank robbery which the Fourth Circuit has determined to be a crime of violence under the § 924(c)(3) force clause. See United States v. McNeal, 818 F.3d 141, 156 (4th Cir. 2016) (holding that armed bank robbery, and the lesser included offense of bank robbery, are crimes of violence under the § 924(c)(3) force clause).
For these reasons, petitioner cannot state a claim upon which relief may be granted and his § 2255 petition is properly dismissed.
Certificate of Appealability
Rule 11 of the Rules Governing Section 2255 Cases provides that "the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability shall not issue absent "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by demonstrating that reasonable jurists would find that an assessment of the constitutional claims is debatable and any dispositive procedural ruling dismissing such claims is also debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). As reasonable jurists would not find this Court's dismissal of petitioner's § 2255 motion debatable, a certificate of appealability is DENIED.
CONCLUSION
Accordingly, for the foregoing reasons, respondent's motion to dismiss [DE 123] is GRANTED and petitioner's motion to vacate pursuant to 28 U.S.C. § 2255 [DE 114] is DISMISSED. A certificate of appealability is DENIED. SO ORDERED, this 21 day of July, 2017.
/s/_________
TERRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE