UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

 

)
UNITED STATES OF AMERICA )
)
v. )
) Criminal Action No. 10-251 (RBW)
DARREN UPSHUR, )
)
Defendant. )
g
MEMORANDUM OPINION

The defendant, Darren Upshur, is currently sewing a 188-month term of imprisonment
that was imposed by this Court following his plea of guilty to one count of unlawful distribution
of fifty grams or more of cocaine base, also known as crack, in violation of 21 U.S.C.

§ 84l(a)(l) and (b)(l)(B)(ii) (2006). S;oe Plea Agreement at l (Nov. 9, 2011); Judgment in a
Criminal Case (“Judgment”) at 2 (Feb. 15, 2012). Currently pending before the Court are the
defendant’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Def.’s
Mot.”) and his Supplemental Motion to Vacate Judgment Under 28 U.S.C. § 2255 (“Def.’s Supp.
Mot.”), which “move[] this Court to vacate his sentence and enter an amended judgment
sentencing him to time-served, in light of the Supreme Court’s decision in Johnson v. United
M, _U.S. _, 135 S. Ct. 2551 (2015).” Def.’s Supp. Mot. at l. Upon consideration of the
parties’ submissions,1 the Court concludes that it must deny the defendant’s motion for the

reasons explained below.

 

' In addition to the filings already idcnliHed, the Court considered the following submissions in rendering its
decision: (1) the United Slates’ Opposition lo Del`endant’s Motion to Vacale Judgment Under 28 U.S.C. § 2255 and
Supplemental Motion to Vamte Judgment (“Gov’t’s Opp’n"); and (2) the defendant's Reply Mcmorandum in
Support of Motion and Supplemental Motion to Vaeate Judgment Under 28 U.S.C. § 2255 (“Def.’s Reply”).

I. BACKGROUND

Afier the defendant entered his guilty plea, the United States Probation Office (the
“Probation Office”) submitted to the Court its final Presentence Investigation Report (the
“Report” or “PSR”), which included a sentencing guidelines calculation pursuant to the United
States Sentencing Guidelines (the “Sentencing Guidelines” or “USSG”). g PSR at l (Jan. 18,
2012). The Report reflected a total criminal history score of six points based on two prior felony
convictions: (l) a 1999 distribution of heroin conviction adjudicated in the Superior Court of the
District of Columbia` (“Superior Court”), W g 1| 36, and (2) a 2000 attempted robbery
conviction also adjudicated in Superior Court, se_e § 1| 37.2 Based on these convictions, the
Probation Office determined that the defendant qualified as a career offender pursuant to
§ 4B.1 . l(a) of the Sentencing Guidelines. §eg g 1[ 24.3 Thus, although the Probation Off'rce
recognized that “a criminal history score of six [would generally have] establish[ed] a criminal
history category of III,” id_. 1] 39, because “[t] he defendant [wa]s a career offender[,] [ ] the

criminal history category [wa]s VI,” ii 11 40. Accordingly, “[b]ased upon a total offense level of

 

2 The Report identified four additional prior felony convictions; however, the Probation Oifice did not score these
convictions because the sentences resulting from them were not eligible for scoring under the Sentencing
Guidelines. E PSR 1]1| 29, 31-32, 34. Under § 4Al.2(e), a prior sentence may not be counted unless it “was
imposed within ten years of the defendant’s commencement of the instant off`ense,” “exceed[cd] one year and one
month [and] was imposed within fifteen years of the defendant’s commencement of the instant off`ense,” or
“exceed[ed] one year and one month[] . . . [and] resulted in the defendant being incarcerated during any part of such
fifteen-year period.” USSG § 4Al.2(e) (2011). Here, three of the unscored sentences were imposed over fifteen
years before the criminal conduct charged in this case occurred and did not result in the defendant being incarcerated
during that fifteen-year period, and, the fourth unscored sentence was imposed more than ten years before the
criminal conduct charged in this case occurred and did not result in a prison sentence B PSR 11 3 (ref]ecting that
“[t]he criminal conduct charged in the Indictment [in this case] occun'ed on July 29, 2010”); g W 29, 31-32
(reflecting one prior sentence imposed in 1987 for 180 days, and two prior sentences imposed in 1989 for four
years); g ‘\l 34 (reflecting a fourth prior sentence imposed in 1999 that did not result in imprisonment).

3 Although the Probation OHice did not explicitly identify which of the defendant’s prior felony convictions formed
the basis for its career offender detennination, g PSR 11 24, it only added criminal history points for the
defendant’s 1999 distribution of heroin conviction and 2000 attempted robbery conviction, g g 1111 36-37. Thus,
as the government correctly notes, see Gov’t’s Opp’n at 3, and the defendant does not disputc, sec generally Def.‘s
Supp. Mot.; Def.’s Reply, these two convictions were the only convictions on which the Probation Oliice could have
based its career offender detennination, 53 USSG § 4B l .2(c)(2) (2011) (instructing that “the sentences for at least
two of the [ ] felony convictions [must be] counted separately under the provisions of § 4A1. l(a), (b), or (c)”); id

§ 4A1.1(a)-(c) (referring only to sentences that receive criminal history points).

31 and a criminal history category of VI,” the Report calculated “the [applicable] guideline
imprisonment range [a]s 188 months to 235 months.” l_d_. 1| 100.

The Court sentenced the defendant on February 1, 2012. g Judgment at l. At the
sentencing hearing, the Court “accept[ed] the [Probation Offrce’s final Report] and [its]
Guidelines [calculations] as accurate” without any objection by defense counsel, Def.’s Supp. '
Mot., Exhibit (“Ex.”) A (Transcript of Sentencing Before the Honorable Reggie B. Walton (Feb.
l, 2012) (“Sentencing Tr.”)) 3:8-10, 17-18, and, upon “consider[ing] all the various factors in
deciding [ ] the appropriate sentence [ ], including the Guideline sentence,” it concluded that a
sentence at “the bottom end of the Guidelines” was appropriate, ida Ex. A (Sentencing Tr.) 7:17-
2l. Accordingly, the Court sentenced the defendant to a 188-month term of imprisonment Sie
Judgment at 2.

Subsequently, on June 26, 2015, the Supreme Court issued its decision in Johnson. w

 

_ U.S. at __, 135 S. Ct. at 2551. On June 21, 2016, the defendant filed an abridged motion to
vacate his sentence pursuant to 28 U.S.C. § 2255 (2012), see generally Def.’s Mot., in
accordance with the Standing Order issued by the Chief Judge of this Court, ge Standing Order

at 2 (June 2, 2016) (authorizing prisoners seeking post-conviction relief based on Johnson “to

 

file an abridged motion[] pursuant to 28 U.S.C. § 2255[] . . . by June 26, 2016”). The
defendant’s motion, as supplemented on October 31, 2017, B Def`.’s Supp. Mot. at l, is the
subject of this Memorandum Opinion.
II. STANDARD`OF REVIEW
The Antiterrorism and EH`ective Death Penalty Act (the “AEDPA”) permits a federal
prisoner in custody pursuant to a sentence imposed by a federal court to “move the court which

imposed the sentence to vacate, set aside[,] or correct the sentence” “upon the ground that the

sentence was imposed in violation of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
However, it “limits the time in which a prisoner may bring such a motion,” United States v.
gm 214 F.3d 199, 200 (D.C. Cir. 2000), providing that

[a] [one]-year period of limitation shall apply to [any such] motion . . . [, and t]he
limitation period shall run 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

28 U.s.c. § 2255(0.
m. ANALYSIS

Under the version of the Sentencing Guidelines in effect when the defendant was

sentenced,

[a] defendant [wa]s a career offender if (1) the defendant was at least eighteen
years old at the time the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is either a crime of violence or
a controlled substance offense; and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance offense.

USSG § 4Bl.l(a) (2011). The Sentencing Guidelines fitrther defined a “crime ofviolence” as

any offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that -

(1) has as an element the use, attempted use, or threatened use of physical force
against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical injury
to another,

Ld. § 4B1.2(a). The clause “or otherwise involves conduct that presents a serious potential risk
of physical injury to another” is known as the “residual clause.” l_BMs\/.Unit__e_d_m, _
U.S. _, _, 137 S. Ct. 886, 891 (2017).

The defendant contends that his “prior [ ] attempted robbery conviction could only
qualify as a crime of violence under the residual clause” of § 4B1.2(a) of the Sentencing
Guidelines, Def.’s Supp. Mot. at 3, and, thus, “his sentence was unconstitutionally, unlawfully,
and unjustly increased based on an advisory [Sentencing] Guidelines provision that, as the

Supreme Court recognized for the first time in Johnson, was so meaningless that this Court could

 

not objectively, fairly, and reliably apply it,” id at 12. The government argues in response that
the Court should deny the defendant’s motion for several reasons, including that “his motion is
untimely under 28 U.S.C. § 2255(f),” he “has procedurally defaulted the challenge he now seeks
to raise,” and “his claim is not cognizable under § 2255.” Gov’t’s Opp’n at 7. The Court first
addresses the defendant’s timeliness argument, as that issue is potentially dispositive
A. Timeliness Under § 2255(f)

“In most cases, the operative date from which the limitation period is measured will be
the . . . date on which the judgment of conviction becomes final.” Dodd v. United States, 545
U.S. 353, 357 (2005) (intemal quotation marks and citation omitted). “Where, as here, ‘a federal
criminal defendant does not appeal to the court of appeals, the judgment becomes final upon the
expiration of the period in which the defendant could have appealed to the court of appeals. ”’
United States v. Ingi_'am, 908 F. Supp. 2d l, 4 (D.D.C. 2012) (Walton, J.) (quoting Sanchez-
Castellano v. United States, 358 F.3d 424, 427 (6th Cir. 2004)). Here, because the defendant did

not notice an appeal fi'om the judgment imposed by this Court on Februaiy 1, 2012, §

` Judgment at 1, his judgment became final fourteen days thereafter, on February 15, 2012, g
Fed. R. App. P. 4(b)(l)(A) (2012) (“ln a criminal case, a defendant’s notice of appeal must be
filed in the district court within 14 days . 7 . of[] the entry of [ ] the judgment . . . being
appealed[.]”). Thus, because the defendant did not file the‘instant motion until over four years
later, g Def.’s Mot. at l, his motion is untimely under § 2255(f)(1), see 28 U.S.C. § 2255(f)(1).
Nonetheless, the defendant contends that his motion is timely pursuant to 28 U.S.C.
§ 2255(f)(3), which provides that a federal prisoner may file a § 2255 motion within one year of
“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.” Specifically, he argues that his “motion satisfies the statute of limitations
[under § 2255(f)(3)] because it was filed within one year fi'om the date on which the Supreme
Court[] in msgg[] newly and initially recognized the right he asserts-the right not to serve a
sentence increased because of the residual clause, which [ ] is retroactively applicable to cases on
collateral review.” Def`.’s Supp. Mot. at 40. The government responds that “§ 2255(0(3) does
not apply” because “Mr_i_§@ did not recognize the right that the defendant asserts,” Gov’t’s
Opp’n at 14, as it “recognized [only] a right not to be subject to a sentence imposed under the
[Armed Career Criminal Act’s (‘ACCA’)] residual clause” and “did not discuss the
[G]uidelines . . . [or] recognize any rights related to the [G]uidelines’ application,” id_. at ll. It

fiirther argues that the defendant’s position is foreclosed by the Supreme Court’s decision in

Beckle§ v. United States, which demonstrated that “Johnson [does not] appl[y] to claims under

 

the Guidelines” Ld.v at 10 n.3; see also g at 9 (citing Beckles, _ U.S. at _, 137 S. Ct. at 895).

 

 

The Court’s analysis must begin with the Supreme Court’s decision in Johnson. In that

 

decision, the Supreme Court considered a federal prisoner’s challenge to the enhancement of his

sentence pursuant to the ACCA, which imposes “more severe punishment [upon a defendant] if
he has three or more previous convictions for a ‘violent felony,’ a term defined [by the residual
clause of the ACCA] to include any felony that ‘involves conduct that presents a serious
potential risk of physical injury to another.”’ M, _ U.S. at _, 135 S. Ct. at 2555 (quoting
18 U.S.C. § 924(e)(2)(B) (2012)). Specifically, it considered whether the ACCA’s residual
clause violated “the [ ] prohibition of vague criminal laws” contained in the Due Process Clause
of the Fiiih Amendment of the United States Constitution, L, which prohibits the government
from “taking away someone’s life, liberty, or property under a criminal law so vague that it fails
to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites
arbitrary enforcement,” id at 2556. In answering that question in the affirmative, the Supreme
Court observed that “[t]wo features of the residual clause conspire[d] to make it
unconstitutionally vague”: first, it “leaves grave uncertainty about how to estimate the risk posed
by a crime,” it_ia at 2557, and second, it “leaves uncertainty about how much risk it takes for a
crime to qualify as a violent felony,” id at 2558. Based on these features, the Court concluded
that “the residual clause produce[d] more unpredictability and arbitrariness than the Due Process
Clause tolerates.” L<L Accordingly, the Supreme Court held “that imposing an increased
sentence under the residual clause of the [ACCA] violates the Constitution’s guarantee of due

process.” I_d. at 2563.

Therealter, in Beckles, the Supreme Court considered a prisoner’s claim that, in light of

 

lohnsgn, the “identically worded” residual clause in the post-Booker, i.e., advisory, version of
§ 4B1.2(a) of the Guidelines is also void for vagueness _ U.S. at __, 137 S. Ct. at 890.4 In

rejecting the prisoner’s claim, the Court observed that it “has invalidated two kinds of criminal

 

“ The Supreme Court’s decision in United States v. Booker made the Sentencing Guidelines advisory, S£ 543 U.S.
220, 246 (2005). Prior to Booker, the Guidelines were “mandatory and binding on all judges.” §§ at 233.

laws as ‘void for vagueness’: laws that define criminal offenses and laws that fix the permissible

 

 

sentences for criminal ofi`enses,” and the ACCA’s residual clause invalidated in Johnson fell into
the latter category, as it “required sentencing courts to increase a defendant’s prison term fi'om a
statutory maximum of [ten] years to a minimum of [fifteen] years.” I_cL at 892. It further
observed that, “[u]nlike the ACCA, [ ] the advisory Guidelines do not fix the permissible range
of sentences[,] . . . [but] merely guide the exercise of a court’s discretion in choosing an
appropriate sentence within the statutory range.” g “Accordingly, [it held that] the [advisory]
Guidelines are not subject to a vagueness challenge under the Due Process Clause[] [and t]he

residual clause in § 4B1.2(a)(2) therefore is not void for vagueness.” ltL

 

In the wake ofBeckles circuit courts are split as to how broadly to define the right

recognized in Johnson for purposes of § 2255(0(3). Although this Circuit has not addressed the

 

issue, a majority of circuit courts have concluded, as the government does here, that the right

recognized in Johnson must be limited to its holding that “the residual clause of the ACCA is

 

unconstitutionally vague,” and ~thus, the right “d[oes] not extend to other legal authorities such as
the [] Guidelines” Raybon v, United States, 867 F.3d 625, 630 (6th Cir. 2017); g United

States v. Blackstone 903 F.3d 1020, 1028 (9th Cir. 2018) (“Johnson did not recognize a new

 

 

right applicable to the mandatory Sentencing Guidelines on collateral review.”); Russo v. United

States, 902 F.3d 880, 883 (8th Cir. 2018) (“Johnson did not address the sentencing guidelines,

 

 

andrBeckles rejected a vagueness challenge to the advisory guidelines.”); United States v. Green,

 

 

898 F.3d 315, 322-23 (3d Cir. 2018) (“[I]n light of Beckles, Johnsgn’s holding as to the residual
clause in the ACCA created a right only as to the ACCA, and not a broader right that applied to
all similarly worded residual clauses, such as that found in the advisory Sentencing

Guidelines.”); United States v. Greer, 881 F.3d 1241, 1247 (10th Cir. 2018) (rejecting the

defendant’s claim based on a “right not to be sentenced under the residual clause of

§ 4B1.2(a)(2) of the mandatory Guidelines” because “[t]he Supreme Court has recognized no
such right”)j United States v. Brow_n, 868 F.3d 297, 301-02 (4th Cir. 2017) (“Petitioner’s motion
relies on a claimed due-process right to have his Guidelines’ range calculated without reference
to an allegedly vague [ ] Guidelines’ provision. . . . Regrettably for [the p]etitioner, the Supreme

Court did not recognize such a right in Johnson.”), cert. denied, _ U.S. _, 139 S. Ct. 14 (2018);

 

In re Arnick, 826 F.3d 787, 788 (5th Cir. 2016) (“Johnson did not address [§] 4B1.2(a)(2) of the

 

Guidelines. Nor has the Supreme Court held that a Guidelines enhancement that increases the
Guidelines range implicates the same due process concerns as a statute that increases a statutory
penalty.” (intemal citation omitted)). By contrast, a relative minority of circuit courts have
concluded that the John_son right may be more broadly defined as “a right not to have [one’s]
sentence dictated by the unconstitutionally vague language of [a] mandatory residual clause,”
and, thus, may include a right not to be sentenced under the residual clause of § 4B1.2 of at least
the pre-gm era, i.e., when the Sentencing Guidelines were mandatory Cross v. United
_S_tm, 892 F.3d 288, 294 (7th Cir. 2018) (emphasis removed); YQ,_§Lgn Mogre v. United States,
871 F.3d 72, 82 (lst Cir. 2017) (observing that it “makes sense” that “the rule [in Johnson is
broader than the technical holding” and that “one [could] describe the rule as being that the text
of the residual clause, as employed in the ACCA, is too vague to provide a standard by which
courts must fix sentences”); Vargas v. United States, Nos. 16-2112 (L), 16-2458 (Con), 16-2698
(Con), 2017 WL 3699225, at *1 (2d Cir. May 8, 2017) (permitting the petitioner to challenge his

sentencing enhancement under the Guidelines in a successive § 2255 motion because “Beckles

 

did not clearly foreclose the argument that |Johnson’s] reasoning is []applicable to the

[p]etitioner’s circumstances, given that his sentence was imposed prior to . . . Booker”).

However, the Court need not determine which of these views is correct because the right
asserted by the defendant in this case falls outside even the broadest possible characterization of

the right recognized in Johnson. As the Fourth Circuit has observed, “a Supreme Court case has

 

‘recognized’ an asserted right within the meaning of § 2255(f)(3) if it has formally
acknowledged that right in a definite way.” Brown, 868 F.3d at 301. Here, the defendant

contends that Johnson “recognized that it is patently unfair to sentence someone to increased

 

punishment under [the residual clause] in any context,” Def`.’s Supp. Mot. at 41. However, the
Supreme Court did not recognize that the ACCA’s residual clause is “patently unfair,” id_., which
the defendant appears to assume would encompass the broad reach of due process principles he
seeks to invoke in this case, §§e iiia at 28 (arguing that the defendant’s “sentence . . . violate[s] []
due process because [it] (1) . . . is based on ‘misinformation of constitutional magnitude’; (2) is

based on improper or inaccurate information more generally; and (3) violates substantive due

process guarantees”). Rather, Johnson recognized only that the residual clause violated the Due

 

Process Clause’s “prohibition of vague criminal laws.” _ U.S. at _, 135 S. Ct. at 2555.

 

 

Moreover, as Beckles makes clear, the right recognized in Johnson does not apply in “any
context,” Def`.’s Supp. Mot. at 41, but only in the context of a residual clause “that fix| es| the
permissible sentences for criminal offenses,” i.e., residual clauses that are subject to void-for-
vagueness challenges, _ U.S. at __, 137 S. Ct. at 892. Thus, it is not surprising that the

defendant does not cite, nor has the Court been able to locate, any case concluding that Johnson

 

recognized a right not to be sentenced under the residual clause of the advisory Guidelines, As

other courts have concluded, “Beckles [ ] excluded fi'om the scope of Johnson’s rule those

 

 

sentencing provisions that advise, but do not bind, a sentencing court or otherwise ‘fi_x’ a

defendant’s sentence.” McCandless v. United States, Crim. Action No. 10-00793-1 DKW, 2017

10

WL 4019415, at *4 & n.9, *5 (D. Haw. Sept. 12, 2017), certificate of appealability denied, No.

17-16964, 2018 wL 1586964 (9th cir. Jan. 30, 2018), cert denied, 138 S. ci. 2592 (2018); §e_e

 

 

Moore 871 F.3d at 84 (observing that “Beckles declared Johnson [ ] categorically inapplicable to

 

the post-Booker advisory [G]uidelines”). Accordingly, there exists no basis for this Court to

 

conclude that Johnson even considered the right asserted by the defendant in this case, let alone

 

“formally acknowledged that right iii a definite way.” Brown, 868 F.3d at 301; Le Fox v.

 

 

United States Crim. Action No. 13-00564-1 DKW, 2018 WL 650200, at *6 (D. Haw. Jan. 31,

 

2018) (rejecting the defendant’s § 2255 motion as untimely because “[h]is due process claim-
framed as the ‘arbitrary’ and ‘unreliable’ determination that his prior conviction was a ‘crime of

violence’ [under the advisory Guidelines]_d[id] not spring from a right newly recognized by

 

 

Johnson”); see also McCandless, 2017 WL 4019415, at *3, *5 (rejecting the defendant’s attempt
j “to extrapolate a newly recognized right from . . . the principles animating the |Johnson|
decision” by arguing that “his career offender designation under the Guidelines was ‘unreliable’
and ‘arbitrary”’).s
The defendant’s counterarguments are also unavailing As an initial matter, the
defendant argues that “the dispositive question [under § 2255(f)(3)] is whether [he] has

‘asserted’ that his sentence violates [the right recognized in] Johnson,” not “[w]hether that right

 

in fact applies to the facts of [his] case such that he may benefit from it[, which] is a separate[]

merits issue,” and, thus, his motion is timely because it “unquestionably . . . ‘asserts’ that his

 

sentence violates a right newly recognized by the Supreme Court iri Johnson.” Def`.’s Reply at 2.

The Court must reject the defendant’s position for at least two reasons First, his position

 

5 The defendant appears to suggest that Jolmson implicates the advisory Guidelines because it “cit[ed] advisory
Guidelines cases.” Def`.’s Reply at 3 (citing Johnson, _ U.S. at __, 135 S. Ct. at 2560). However, Johnson cited
these cases only for the proposition that courts have “had trouble making sense of the residual clause," __ U.S. at _,
135_(18].310.l at 2559-60, and, unlike in Beckles, did not take any position on the legality of the Sentencing Guidelines’
rest c ause.

 

 

 

 

ll

contradicts the plain language of § 2255(0(3), which explicitly provides that the statute of
limitations runs from “the date on which the right asserted was initially recognized by the
Supreme Court,” and further provides that § 2255(f)(3) applies only if “that right has been newly

recognized by the Supreme §ourt.” 28 U.S.C. § 2255(f)(3) (emphases added); gap Dodd, 545

U.S. at 358 (“That clause_‘if that right has been newly recognized by the Supreme Court and

 

made retroactively applicable to cases on collateral review’-imposes a condition on the
applicability of [§ 2255(f)(3)].”). As other courts have recognized, this language requires this
Court to determine not only that the defendant has alleged that the Supreme Court has
recognized the right asserted, but whether the Supreme Court has in fact recognized the right

asserted by the defendant. See, e.g., Brown, 868 F.3d at 301 (observing that “only the Supreme

 

Court can recognize a new right under § 2255(f)(3),” and, “[c]onsequently, to find [a] motion
timely [under § 2255(f)(3), the Court] must conclude that it relies on a right ‘recognized’ in

Johnson or another more recent Supreme Court case”); M, 2018 WL 650200, at *5 (“The

 

timeliness inquiry[] [under § 2255(f)(3)] turns on whether [a] [m]otion asserts the particular right

recognized by Johnson[.]” (emphasis added)); United States v Davis, Civ. Action No. 16-832,

 

 

2016 WL 11257359, at *4 (E.D. Va. Sept. 28, 2016) (“[T]he determination whether defendant’s
motion is timely depends on whether the ‘right asserted’ by defendant here is the same ‘right’
that was ‘newly recognized’ by the Supreme Court in Johnson.” (emphasis added)). Although

some courts have concluded that any inquiry into whether “the right [ultimately] applies to [the

 

defendant’s] situation” is inappropriate under § 2255(0(3), Cross, 892 F.3d at 294, they have
nonetheless found it necessary to assess whether the right asserted by the defendant was indeed

recognized by the Supreme Court, see, e.g., § (observing that “[u]nder Johnson, a person has a

 

right not to have his sentence dictated by the unconstitutionally vague language of the mandatory

12

residual clause,” and concluding “that the requirements of [§] 2255(f)(3) [we]re met” because the
defendants “assert[ed] precisely that iight" (emphasis removed)).6

Second, adopting the defendant’s interpretation, i.e., limiting the Court’s timeliness
inquiry to whether the defendant has asserted a right that he claims has been recognized by the
Supreme Court, without any inquiry into whether the Supreme Court indeed recognized that
right, would effectively nullify the restrictions imposed by § 2255(f)(3). Specifically, it would
permit “any petitioner [to] avoid [the] AEDPA’s clear time limits simply by invoking a right [he

claims is] newly recognized by the Supreme Court.” Greer, 881 F.3d at 1245. Such a result is

 

not only inconsistent with the plain language of § 2255(0(3), but also contradicts Congress’s
intent “for the AEDPA to bring greater finality to convictions by restricting use of the writ of
habeas corpus.” Wyche v. United States, 317 F. Supp. 2d 1, ll (D.D.C. 2004) (citing M
\_/._Liylo_i_', 529 U.S. 420, 436 (2000)).

The defendant additionally argues that because “‘Congress in § 2255 used words such as
“rule” and “right” rather than “holding[,]”’ JohM’s rule must be ‘broader than [its] technical

holding.”’ Def`.’s Reply at 4 (alterations in original) (quoting Moore, 871 F.3d at 82). Rather, he

 

 

6 The Court acknowledges tim another member of this Court has concluded that a court conducting a timeliness
inquiry under § 2255(1)(3) may not consider “whether a right has in fact been newly rccognizcd” by the Supreme
Court, Unitgi §tgt§ y, Hammond, Crim. Action No. 02~294 (BAH), 2018 WL 6434767, at *8 (D.D.C. Dec. 7,
2018); however, this Court respectfully disagrees In Haminond, the Court reasoned that the Supreme Court in
I_JM “made clcar that timeliness under § 2255(f)(3) is exclusively a ftuiction of that provision’s first clause,” g
(citing Dodd, 545 U.S. at 358), and, because ‘\'iew[ing] timeliness through the lens of Johnson’s scope . . .
emphasiz[es] § 2255(f)(3)’s second clause," that approach “emphasizes the wrong clause,” g However,
Hammond’s conclusion overlooks that the first clause of§ 2255(1)(3), like the second clause, requires that the right
asserted “was [ ] recognized by thc Supreme Court.” 28 U.S.C. § 2255(1)(3). Moreover, Dodd concluded only that
the second clause of § 2255(0(3) is irrelevant to determining the d_atg on which the statute of limitations begins to
nui, § 545 U.S. at 358 (f_inding that the defendant’s “reliance on the second clause to identify the operative date is
niisplaced”), and expressly instructed that the second clause is otherwise critical to the timeliness inquiry, § i_d_.
(observing that § 2255(f)(3) “does not apply at all if the conditions in [its] second clause[] . . . have not been
satisfied”). Additionally, this Court disagrees with Hammpnd's conclusion that this Circuit’s decision in w
Williams instructs otherwise, because Williams addressed the burden applicable to a defendant’s request for
certification of a successive motion under § 2255(h), which only requires “a prima facie showing that the
[defendant’s] motion contains ‘a new rule of constitutional law.’” Hammong, 2018 WL 6434767, at *8 (quoting l_n
re Williams 759 F.3d 66, 70 (D.C. Cir. 2014)).

 

 

13

 

argues, the right recognized in Johnson “includes [the Supreme] Court’s ‘analysis and
reasoning,”’ g at 6 (quoting Stringer v. Black, 503 U.S. 222, 228-29 (1992)), and because
“[t]he relief [he] seeks flows directly fi'om JohMi_i’s analysis and reasoning,” the requirements
of § 2255(f)(3) are satisfied, g However, the defendant fails to cite, nor has the Court been able

to locate, any decision in which a court construed the right recognized in Johnson so broadly as

 

to encompass a challenge to the advisory Sentencing Guidelines. Indeed, the First Circuit in
m the case on which the defendant relies, g Def`.’s Reply at 4, limited the right recognized
in M to “residual clause[s] . . . [that are] too vague to provide[] . . . a standard by which
courts must fix criminal sentences,” 871 F.3d at 80, and explicitly acknowledged that

“Beckles . . . reject[ed] the application of the rule of Johnson [ ] to the advisory guidelines

 

because [] . . . those guidelines do not fix sentences,” id_. at 83. Moreover, the right the defendant
asserts does not “flow[] directly from Johnspn’s analysis and reasoning,” Def. ’s Reply at 6,
because, as already explained, the constitutional rationale for invalidating the residual clause of

the ACCA does not apply to the residual clause at issue in this case, g Beckles _ U.S. at _,

 

137 S. Ct. at 892.

The defendant further argues that Beckles is not dispositive because the defendant in that

 

case “challenged his sentence only on the grounds that the advisory Guidelines residual clause
was unconstitutionally void-for-vagueness,” and, thus, “none of the arguments that [the
defendant] raises in the instant petition were before the Court.” Def`.’s Reply at 4. However, the

fact that Beckles does not foreclose the defendant from raising arguments based on Johnson in a

 

 

direct appeal or in an otherwise timely § 2255 motion does not establish that the Supreme Court

indeed recognized the right he asserts in this case for purposes of § 2255(f)(3). Sie Greer, 881

 

F.3d at 1247 (“While [ ] courts can apply the reasoning ofJohnson to support a finding that the

14

residual clause . . . [is] unconstitutional[] [ ] on direct appeal, [ ] review under the AEDPA is
more limited” because the “AEDPA limits federal habeas relief to new [ ] rights recognized by

the Supreme Court.” (second emphasis added)). Additionally, the defendant argues that Beckles

 

is distinguishable because the Court deemed the motion in that case timely pursuant to

§ 2255(f)(1), and, thus, “the question of whether Johnson newly recognized a right that would

 

allow [a prisoner] to collaterally attack his advisory Guidelines sentence within the § 2255(f)(3)
limitations period was neither presented nor addressed.” Def.’s Reply at 4. Although the

defendant is correct that Beckles did not consider § 2255(f)(3), as already explained, Beckles’s

 

 

reasoning strongly supports the conclusion that the right recognized in Johnson excludes residual

 

clauses that do not “B the permissible range of sentences” for criminal offenses Beckles _

 

U.S. at __, 137 S. Ct. at 892 (emphasis added); see, e.g., McCandless, 2017 WL 4019415, at *4
& n.9, *5.
The defendant also argues that the Supreme Court’s opinion in Sessions v. Dimaya

“undermine[s] the govemment’s argument that Johnson recognized a new right solely with

 

respect to the ACCA and in no other context” because, although “Johnson nowhere discussed 18

 

U.S.C. § 16(b), the crime-of-violence provision at issue in Dimaya[,] [ ] the Court had no trouble

finding that Johnson’s reasoning applied directly to § l6(b).” Def. ’s Reply at 3 (citing _ U.S.

 

_, __, 138 S. Ct. 1204, 1213 (2018)). Although the defendant correctly characterizes the

Supreme Court’s holding in Dimaya, as the Court already explained, even if this Court assumes

 

that the right recognized in Johnson extends to contexts beyond the ACCA, it must nonetheless
conclude that the right asserted by the defendant would fall outside the scope of that right

because it purports an extension to contexts in which Johnson’s constitutional rationale is not

 

applicable The Supreme Court’s decision in Dimaya only supports this conclusion, as it, like

15

Johnson, recognized that § 16(b) is a “criminal statute” subject to “[t]he prohibition of vagueness

 

in criminal statutes” and found § 16(b)’s residual clause invalid only on that basis. Dimaya, _

U.S. at _, 138 S. Ct. at 1212-13 (quoting Johnson, _U.S. at _, 135 S. Ct. at 2557).

 

The defendant finally argues that Brown, Raybon, and Greer are “incorrect and

 

inapposite” because they relied on “jurisprudence that is not applicable to first-time § 2255
movants” to conclude that “movants could benefit from only the Supreme Court’s technical
holdings.” Def`.’s Reply at 4-5. However, as already explained, the Court’s determination that

the right asserted by the defendant is not the right recognized in Johnson does not depend on

 

these courts’ narrow construction of the Johnson right as applicable only to the ACCA. See, e.g.,

 

Raybgn, 867 F.3d at 630. And, in any event, the Fourth Circuit’s decision in Brown relied not

 

only on the jurisprudence objected to by the defendant, but also the plain meaning of the word
“recognize,” 868 F.3d at 301 (“To ‘recognize’ something is (1) ‘to acknowledge [it] formally’ or
(2) ‘to acknowledge or take notice of [it] in- some definite way.”’ (quoting Merriam-Webster
'I`enth Collegiate Dictionary 976 (1996))), which is indisputably relevant to the Court’s
interpretation of § 2255(f)(3), Mga Wall v. Kholi, 562 U.S. 545, 551 (2011) (instructing that
courts interpreting the AEDPA should “begin by considering the ordinary understanding of’ the
statute’s terms).

In sum, the defendant has failed to establish that the right asserted in his motion “was [ ]
recognized by the Supreme Court,” which renders § 2255(f)(3) inapplicable to his case. 28
U.S.C. § 2255(f)(3). Thus, because the defendant did not file his motion within the limitations
period set forth in § 2255(f)(1), and he does not assert that any other subsection of § 2255(f)

applies, the defendant has failed to demonstrate that his motion is timely under § 2255(f).

16

B. Equitable Tolling

The defendant contends that even if his motion is not timely under § 2255(f)(3), he is
entitled to equitable tolling of the one-year statute of limitations under § 2255(f)(1) because,
“until lmcm, [he] had no claim challenging his sentence based on the identical[] [ ] sentencing
Guidelines provision,” but “[a]s soon as the claim accrued, [he] filed the motion.” Def`.’s Supp.
Mot. at 45-46." The government responds that equitable tolling is not warranted because “the
fact that unfavorable precedent would have stood iii the way of [the] defendant’s claims had he
filed within one year of his conviction becoming final does not constitute an extraordinary
circumstance that stood in [the] defendant’s way of timely filing.” Gov’t’s Opp’n at 15, The
Court agrees with the government

A defendant is “entitled to equitable tolling” under § 2255(f)’ if he can show “(1) that he
has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his

way and prevented timely filing.” Holland v. Florida_., 560 U.S. 631, 649-51 (2010) (intemal

 

quotation marks and citation omitted); B United States v McDade, 699 F.3d 499, 504 (D.C.

Cir. 2012) (“hold[ing], in view of Holland, that equitable tolling applies to motions filed

 

pursuant to § 2255”). However, “[e]quitable tolling[] [ ] is to be employed ‘only sparingly,’”

Cicero, 214 F.3d at 203 (quoting Irwin v, Dep’t of Veterms Affairs, 498 U.S. 89, 96 (1990)),

 

and, thus, “has been applied in the context of the AEDPA only if ‘extraordinary circumstances

 

7 The defendant also argues that equitable tolling is warranted because “it would be unconscionable to enforce the
limitation period aginst [him, given that] . . . applying the Guidelines residual clause to increase his sentence was a
fundamental error that resulted in a complete miscarriage of justice and was inconsistent with the rudimentary

~ demands of fair procedure such that this case presents exceptional circiunstances where the need for habeas relief is
apparent.” Def`.’s Supp. Mot. at 46. However, this argument is better addressed to the defendant’s claim that the
“miscan'iage of justice exception” to the limitation period of § 2255 applies to his case, g _i_tL; see al@ MQuiggin
v. Pe@`§, 569 U.S. 383, 386 (2013) (explaining that the “f'undamental miscarriage of justice exception[] is
grounded in the ‘equitable discretion’ of habeas courts to see that federal constitutional errors do not result in the
incarceration of innocent persons" (citation omitted)), and, thus, the Court addresses the defendant’s argument in its
discussion of that exception, g M Part III.C.

17

beyond a prisoner’s control ma[d]e it impossible to file a petition on time,”’ § (quoting

Calderon v§ U.S. Dist. Court 128 F.3d 1283, 1288 (9th Cir. 1997)).

 

The Court cannot conclude that the defendant has satisfied the stringent requirements for
equitable tolling. As the government correctly notes, _s£_e_ Gov’t’s Opp’n at 14, this Circuit has
recognized in the AEDPA context that “the equitable tolling standard ‘focuses not on whether
unfavorable precedent would have rendered a timely claim futile, but on whether a factor beyond
the defendant’s control prevented him from filing within the limitations period at all.”’ Mv_.

Wilson 792 F.3d 102, 111 (D.C. Cir. 2015) (quoting Whiteside v. United States, 775 F.3d 180,

 

185 (4th Cir. 2014) (en banc)). As the Circuit explained, “[t]he demands of finality oblige a
petitioner to raise those claims that might possibly have merit even where he thinks the court will
be unsympathetic.” § (alteration in original) (quoting M, 775 F.3d at 185). This
reasoning is consistent with the reasoning of a number of other courts that have rejected claims
that favorable changes in the law warrant equitably tolling the AEDPA’s limitation periods. w
§ at 111 & n.ll (collecting cases fi'om the Fourth, Seventh, Eighth, and Ninth Circuits); B\
gg._, Shannon v. Newland, 410 F.3d 1083, 1090 (9th Cir. 2005) (explaining that applying
equitable tolling in such a circumstance “would open the door for any [ ] prisoner to file a habeas
petition anytime a [ ] court issues” a new decision, and such “an interpretation cannot be squared
with the goals of finality that are central to the AEDPA”).

The defendant argues that this Circuit’s decision in H_ead is inapposite because “it is not
simply that ‘unfavorable precedent’ stood in the way of [his] claim[; r]ather, [he] had no claim at

all until Johnson[] [because] Johnson created the claim that [he] brings.” Def`.’s Reply at 7.'

 

 

However, for the reasons already explained, Johnson did not recognize the right upon which the

 

defendant relies, and, thus, it did not “create[] [his] claim.” l_d. Moreover, the defendant does

18

not cite any controlling precedent that would have rendered his claims “entirely meritless” had

he timely raised them. Whiteside 775 F.3d at 186 (in rejecting equitable tolling based on new

 

precedent, noting that the defendant’s “claims were not entirely meritless even under then-
existing precedent”); W Def`.’s Supp. Mot. at 45-46 (asserting only that, “[i]n two . . . cases, the
Supreme Court had expressly rejected the dissent’s assertions that the residual clause [of the
ACCA] was . . . ‘insusceptible of an interpretation that enables principled, predictable
application,”’ and, “[c]onsequently, multiple courts had rejected similar challenges to the
Guidelines residual clause” (intemal quotation marks and citation omitted)). At most, Mon
only increased the defendant’s potential for success on the merits of his claim. However, “a
party is ‘not excused from timely filing his claim because . . . the law might be inhospitable’

inasmuch as ‘the only sure way to determine whether a suit can be maintained is to try it.”’

 

Head, 792 F.3d at 111 (quoting Menominee Indian Tribe ofWis. v United States, 764 F.3d 51,

61 (D.C. Cir. 2014)); g Whiteside 775 F.3d at 186 (“Equitable tolling [ ] may not be applied

 

where, as here, the only impediment to timely filing was the discouragement felt by [the]
petitioner when calculating his odds of success.”). Thus, the Court must reject the defendant’s
claim that equitable tolling is warranted in this case.

C. Miscarriage of Justice/Actual Innocence Exception

The defendant next argues that his case qualifies for the “miscarriage of justice

exception” to the limitation period of § 2255 “because [he] is actually innocent of the sentence
imposed.” Def`.’s Supp. Mot. at 46. Specifically, he argues that he “is legally ineligible for the
recidivist sentencing enhancement applied to him_i.e., he is factually innocent of having two or
more qualifying prior convictions, a condition necessary to justify his current sentence.” I_d at

47. The government responds that, “[t]hough the D.C. Circuit has not spoken on the matter,

19

numerous circuits have considered and rejected claims that the actual innocence exception
applies to ‘innocence’ of a noncapital sentencing enhancement.” Gov’t’s Opp’n at 16. 'It further
argues that, “even if the actual innocence exception could apply to an advisory [G]uideline
calculation, [the] defendant’s claim that his prior convictions did not qualify him as a career
offender is a mere assertion of legal insufficiency, rather than an assertion of factual innocence
as is required for the exception.” § Again, the government has the better argument

“[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass”
notwithstanding the “expiration of the statute of limitations” under the AEDPA. McQuiggin v.

Perkins, 569 U.S. 383, 386 (2013). “This rule, or fundamental miscarriage of justice exception,

 

is grounded in the ‘equitable discretion’ of habeas courts to see that federal constitutional errors

do not result iii the incarceration of innocent persons.” § at 392 (quoting Herrera v. Collins

 

506 U.S. 390, 404 (1993)). However, the Supreme Court has cautioned that “[t]he miscarriage
of justice exception[] . . . applies to a severely confined category: cases in which new evidence
shows ‘it is more likely than not that no reasonable juror would have convicted [the petitioner].”’
§ at 394-95 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). Additionally, some circuit
courts have concluded that the miscarriage of justice exception also “applie[s] . . . where [ ]
innocence is occasioned not by new evidence but by an intervening, controlling change in the
law as applied to a static set of facts.” Phillips v. United States, 734 F.3d 573, 581 n.8 (6th Cir.
2013); m Vosgien v. Perssop, 742 F.3d 1131, 1134 (9th Cir. 2014) (recognizing that a petitioner
may demonstrate actual innocence by showing tha , “in light of subsequent case law[,] [] he
cannot, as a legal matter, have committed the alleged crime”). Nonetheless, “habeas corpus

petitions that advance a substantial claim of actual innocence are extremely rare.” Schlup, 513

U.S. at 321.

20

Although “[t]he Supreme Court has held that, in cases involving procedural default (as
opposed to [the] AEDPA’s statute of limitations), the actual innocence exception applies to . . .
claims of actual innocence of a capital sentence, . . . [it] has declined to decide, and [other] courts
of appeals disagree, whether the actual innocence exception extends to claims of actual

innocence of a noncapital sentence.” United States v. Peterson 916 F. Supp. 2d 102, 107 n.4

 

(D.D.C. 2013) (intemal citations omitted). However, even assuming that the exception does
apply to a noncapital sentence such as the defendant’s, the defendant has failed to demonstrate

“¢

that the exception applies to his case. As the Supreme Court has instructed, actual innocence’
means factual innocence, not mere legal insufficiency” mal_ey_v._l_lthates_, 523 U.S. 614,
623 (1998). Accordingly, this Court agrees with other courts which have concluded that
“[a]ctual innocence applies in the context of habitual offender provisions only where the
challenge to eligibility stems fi'om factual innocence of the predicate crimes, and not from the

legal classification of the predicate crimes.” United States v. Pettiford, 612 F.3d 270, 284 (4th

cir. 2010); _s_e§ Mmero v. ives 682 F.3d 1190, 1 195 (91h Cir. 2012) (“we [ ] hold that the

 

purely legal argument that a petitioner was wrongly classified as a career offender under the [ ]
Guidelines is not cognizable as a claim of actual innocence under the escape hatch.”); McKay v.
United States, 657 F.3d 1190, 1198 (1 lth Cir. 2011) (concluding that the defendant’s “claim that
he was erroneously sentenced as a career offender because one of his prior convictions d[id] not
qualify as a ‘crime of violence’ . . . is one of legal, rather than factual, innocence and thus fails to

fall within the actual innocence exception’s purview”); Peterson, 916 F. Supp. 2d at 106~07

 

(concluding that the defendant’s argument that his prior conviction “c[ould not] be the predicate

for a career offender sentence[] [ ] is an objection to the legal classification of [his] offense and

21

[ ] not based in fact,” and, thus, his “claim that he [wa]s actually innocent of his career offender
sentence c[ould not] excuse his untimely filing”).

Here, although the defendant claims that he is “factually innocent of having two or more
qualifying prior convictions,” Def`.’s Supp. Mot. at 47, he does not claim that he did not commit
the offenses underlying those convictions 'Indeed, he concedes that his alleged innocence of his
career offender designation is based on his claim that he is “_egM ineligible for the recidivist
sentencing enhancement applied to him.” § (emphasis added). Nor does he claim that JohMi
rendered the conduct underlying his conviction in this case or his prior convictions no longer
criminal See, e.g., _I_’_lMp_s, 734 F.3d at 581 n.8. And, although the defendant insists that “it
would be unconscionable to enforce the limitation period against [him] because[] . . . applying
the Guidelines residual clause to increase his sentence was a fundamental error that resulted in a
complete miscarriage of justice and was inconsistent with the rudimentary demands of fair
procedure,” Def`.’s Supp. Mot. at 46, “[w]ithout a demonstration of actual ‘innocence, even the
existence of a concededly meritorious constitutional violation is not in itself sufficient to
establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred

claim,’” United States v. Baxter 761 F.3d 17,429 (D.C. Cir. 2014) (quoting Schlup, 513 U.S. at

 

316). Thus, the Court must conclude that the actual innocence exception is inapplicable to the
defendant’s claim.
D. The Suspension Clause of the United States Constitution

The defendant finally argues that “to the extent that § 2255(1) bars [his] claim as
untimely, it violates the Suspension Clause as applied to him because it leaves him with no
meaningfi.il opportunity to demonstrate that he is incarcerated ‘pursuant to “the erroneous

application or interpretation” of relevant law.”’ Def`.’s Supp. Mot. at 50 (quoting Boumediene v.

22

_B§sh, 553 U.S. 723, 779 (2008)). The government responds that § 2255(1) does not
“unconstitutionally suspend the writ” because it “only limits the filing of a § 2255 motion,”
which is “distinct[] [from] petitions for writs of habeas corpus.” Gov’t’s Opp’n at 17. lt further
argues that “the savings clause of § 2255(e) prevents § 2255 from unconstitutionally suspending
the writ by preserving access to the writ when the remedy by motion under § 2255 ‘is inadequate
or ineffective to test the legality of [the prisoner’s] detention.”’ § at 17-18 (alteration in
original) (quoting 28 U.S.C. § 2255(e)).

The Suspension Clause provides that “[t]he Privilege of the Writ of Habeas Corpus shall
not be suspended, unless when iii Cases ofRebellion or Invasion the public Safety may require
it.” U.S. Const. art. I, § 9, cl.2. As the defendant correctly notes, g Def`.’s Supp. Mot. at 50,
the Suspension Clause guarantees a detainee “a meaningful opportunity to demonstrate that he is
being held pursuant to ‘the erroneous application or interpretation’ of relevant law,”

Boumediene 553 U.S. at 779 (citation omitted). However, “the substitution of a collateral

 

remedy which is neither inadequate nor ineffective to test the legality of a person’s detention
does not constitute a suspension of the writ of habeas corpus.” Swain v. Pressley, 430 U.S. 372,
381 (1977). And, as the defendant concedes, Le_ Def`.’s Supp. Mot. at 49, courts have held that
§ 2255 is not per se an “inadequate or ineffective” substitute for the writ because, under

§ 2255(e), “habeas corpus remains available whenever § 2255 is inadequate or ineffective,”

 

Tri`estman v. United States 124 F.3d 361, 377 n.20 (2d Cir. 1997) (concluding that § 2255(e) “is
proof that § 2255, by its own terms, cannot possibly constitute a suspension of the Great Writ”);
_s§§ 28'U.S.C. § 2255(e) (“An application for a writ of habeas corpus in behalf of a prisoner who

is authorized to apply for relief by motion pursuant to this section, shall not be entertained . . .

23

unless . . . the remedy by motion is inadequate or ineffective to test the legality of his
detention.”).
The defendant argues that he had no “meaningfiil opportunit ” to challenge the

constitutionality of the residual clause of § 4B1.2 because, prior to Johnson, he “could [not]

 

establish that he was unlawfully sentenced.” Def.’s Supp. Mot. at 50. However, as already

explained, Johnson did not create the claim the defendant seeks to pursue. And, notably, he

 

acknowledges that prisoners in other circuits brought claims identical to the claim raised in

 

John§ before Johnson was decided S§ee Def`.’s Supp. Mot. at 45 (citing M
Mbley, 687 F.3d 625, 632 n.7 (4th Cir. 2012)); M, 687 F.3d at 632 n.7 (addressing a
prisoner’s argument “that the residual clause of USSG § 4B1.2(a)(2) should be stricken as
unconstitutionally vague”). Thus, the defendant’s position ultimately appears to rest on his
belief that, prior to M, his claim would have been rejected. w Def`.’s Supp. Mot. at 45
(noting that “the Supreme Court had expressly rejected the assertions that the residual clause [of
the ACCA] . . . was ‘insusceptible of an interpretation that enables principled, predictable

application[,]’ [and c]onsequently, multiple courts had rejected similar challenges to the

Guidelines residual clause” (intemal citation omitted)); see also § at 50 (“Thus, by the time that

 

[he] could establish that he was unlawfully sentenced, it was too late to file a claim under

 

§ 2255(1)(1).” (emphasis added)). However, as the Tenth Circuit has explained, the question of
whether § 2255 is “inadequate or ineff`ective” “is concerned with process-ensuring the
petitioner an opportunity to bring his argument-not with substance-guaranteeing nothing
about what the opportunity promised will ultimately yield in terms of relief.” Prost v, Andersop,
636'F.3d 578, 584 (10th Cir. 2011) (emphasis removed). And, “[e]ven if a prisoner’s claim

[would] fail[] under [then-controlling] precedent, a motion to vacate remains an adequate and

24

effective remedy for a prisoner to raise the claim and attempt to persuade the court to change its
precedent.” MM§MLH§¢MM§, 851 F.3d 1076, 1099 (llth
Cir. 2017). To the extent that the defendant is correct that Supreme Court precedent would have
required this Court to reject his claim, he nonetheless could have appealed the Court’s decision
_to this Circuit and then could have sought review of the Circuit’s decision in the Supreme Court,
Accordingly, the Court concludes that, “[b]ecause [the defendant] ‘was free to bring’ []his
claim . . . in [a timely] motion to vacate, the remedy by motion was an ‘adequate and effective
means for testing such an argument.”’ § (quoting PLSL, 136 F.3d at 580) (rejecting the
defendant’s argument that § 2255 was “inadequate or ineffective” because it barred him from
bringing a successive petition challenging his sentencing enhancement under the ACCA based
on an intervening change in the Supreme Court’s interpretation of that statute); B m 636
F.3d at 590-91 (rejecting the defendant’s argument that § 2255 was “inadequate or ineffective”
because it barred him from bringing a successive petition based on a “previously foreclosed
statutory interpretation” of the statute of his conviction).

The defendant’s remaining arguments are also unpersuasive He argues that § 2255

violates the Suspension Clause in his case because, “[i]n light of Johnson, [he] is factually and

 

legally innocent of his career offender classification and enhanced sentence,” Def`.’s Supp. Mot. -
at 50, relying on the Third Circuit’s observation that “[w]ere no [ ] avenue of judicial review
available for a party who claims that s/he is factually or legally innocent as a result of a
previously unavailable statutory interpretation, we would be faced with`a thorny constitutional
issue,” § (quoting In re Dorsainvil, 119 F.3d 245, 248 (3d Cir. 1997)). Although some circuits
have found § 2255 to be “inadequate or ineffective” when it deprives a prisoner of an

opportunity to demonstrate that he is “actually innocent,” see, e.g., Wooten v. §auley, 677 F.3d

25

303, 307 (6th Cir. 2012) (citation omitted), as already explained, “‘actual innocence’ means ’
factual innocence, not mere legal insufficiency,” § (quoting I_BM 523 U.S. at 623), and the
defendant’s claim is a legal one, M, M, 612 F.3d at 284. Moreover, I_rm~,_l)o§ainvi_l
is distinguishable from this case In that case, the defendant argued that “he ha[d] been
convicted and imprisoned for conduct that is not criminal” based on a “previously unavailable
statutory interpretation” of the statute of his conviction In re Dorsainvil, 119 F.3d at 248. In
holding that § 2255 was an “inadequate and ineffective” remedy, the Third Circuit emphasized
the defendant’s “unusual position-that of a prisoner who had no earlier opportunity to challenge
his conviction for a crime that an intervening change in substantive law may negate.” § at 251.

Here, the defendant does not, and could not, claim that Johnson would “negate” the crime for

 

which he was convicted, nor the crimes that supported his status as a career offender, and, thus,
his case does not present the “unusual circumstance” that the Third Circuit believed warranted its

ruling. §; ge_e In re Jones 226 F.3d 328, 333-34 (4th Cir. 2000) (“conclud[ing] that § 2255 is

 

inadequate and ineffective to test the legality of a conviction when[, inter alia,] subsequent to the

 

prisoner’s direct appeal and first § 2255 motion, the substantive law changed such that the
conduct of which the prisoner was convicted is deemed not to be criminal”).
Thus, the Court concludes that application of § 2255(f) does not violate the Suspension

Clause under the circumstances presented in this case Accordingly, the defendant’s motion is

 

untimely under §2255(1`), and the Court must deny it. wgn Cice_ro, 214 F.3d at 205.
IV. CONCLUSION
For the foregoing reasons, the Court must conclude that the defendant’s motion to vacate
the sentence imposed by this Court is untimely under 28 U.S.C. § 2255(f). Additionally, the

Court must conclude that equitable tolling of § 2255(f)’s limitation period is unwarranted in this

26

case and that the miscarriage of justice/actual innocence exception to § 2255(f) does not apply.
The Court must finally conclude that applying § 2255(f) to bar the relief requested by the
defendant does not violate the Suspension Clause of the United States Constitution,
Accordingly, the Court must deny the defendant’s motion.s

so 0RDERE1) tammy or Febmary, 2019

 

RE IE B WALTON
United States District Judge

 

8 The Court will contemporaneously issue an Ordcr consistent with this Memorandum Opinion.

27

