from the United States District Court for the Eastern
District of Michigan at Detroit. Nos. 2:03-cr-50064-1;
2:16-cv-12174-Bernard A. Friedman, District Judge.
E. Morgan, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Flint,
Michigan, for Appellant.
Cralle, UNITED STATES ATTORNEY'S OFFICE, Detroit,
Michigan, for Appellee.
Before: NORRIS, SUHRHEINRICH, and GRIFFIN, Circuit Judges.
SUHRHEINRICH, Circuit Judge.
Petitioner Jerome Raybon appeals the district court's
denial of his 28 U.S.C. § 2255 motion, claiming that his
Michigan offense of assault with intent to do great bodily
harm no longer qualifies as a crime of violence under the
Sentencing Guidelines after Johnson v. United
States, 135 S.Ct. 2551 (2015) (Johnson 2015).
We conclude that his claim is not timely under 28 U.S.C.
2004, during the pre-Booker era when the Sentencing
Guidelines were deemed mandatory, see United States v.
Booker, 543 U.S. 220, 233 (2005), Raybon pleaded guilty
to distributing more than 50 grams of cocaine base in
violation of 21 U.S.C. § 841(a)(1). As part of his plea
agreement, Raybon agreed to be "held accountable for
between 50 and 150 grams of cocaine base which results in a
base offense level of 32." Raybon further agreed that he
qualified as a career offender under the United States
Sentencing Guidelines, U.S.S.G. § 4B1.1, based on a
prior drug trafficking conviction and a conviction for
assault with intent to do great bodily harm less than murder.
The career offender designation increased his guidelines
range to 262 to 327 months' imprisonment (from 140 to 175
months). The district court sentenced Raybon to 295
months' imprisonment. Raybon appealed. This court
affirmed based on an appeal waiver in the plea agreement.
years later, under a different regime of "effectively
advisory" Guidelines, see Booker, 543 U.S. at
245, Raybon moved to vacate his sentence pursuant to §
2255 based on Johnson 2015. Johnson 2015
invalidated the residual clause of the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), as being
unconstitutionally void for vagueness. Johnson
2015, 135 S.Ct. at 2557. Raybon argued that his
predicate conviction for assault with intent to do great
bodily harm no longer qualified as a crime of violence under
an identically-worded residual clause in the career offender
guideline, U.S.S.G. § 4B1.2(a)(2). The district
court denied the motion as untimely, because it perceived
Raybon's argument as actually based not on Johnson
2015, but on Johnson v. United States,
Johnson 2010, 559 U.S. 133 (2010) (Johnson
2010), which held that the term "physical
force" in the identically-worded elements clause of the
Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i),
means violent force. 559 U.S. at 140. The district
court held that although Raybon mentioned Johnson
2015 and asserted that it applied to his case, he
basically argued that his assault conviction did not satisfy
the elements clause of U.S.S.G. § 4B1.2(a)(1) because
Michigan law does not require proof of "the use,
attempted use, or threatened use of physical force" and
was not one of the four enumerated offenses listed in
U.S.S.G. § 4B1.2(a)(2). Because Raybon's argument
"focuse[d] on other clauses that were not at issue in
Johnson , " the district court
held that his claims should have been raised in 2006, when
his conviction became final, or at the latest in 2010, after
Johnson 2010 was decided. The district court also
ruled on the merits, holding that assault with intent to do
great bodily harm was a crime of violence under the elements
clause of U.S.S.G. § 4B1.2(a)(1). Raybon appealed, and
the district court issued a certificate of appealability.
court reviews the district court's denial of a motion to
vacate under § 2255 de novo. Moss v. United
States, 323 F.3d 445, 454 (6th Cir. 2003).
agree with the district court that Raybon's § 2255
petition was untimely, but follow a different analytical
path. A § 2255 motion must be filed within one year of
"the date on which the judgment of conviction becomes
final." 28 U.S.C. § 2255(f)(1). A conviction
becomes final upon conclusion of direct review.
Sanchez-Castellano v. United States, 358 F.3d 424,
426 (6th Cir. 2004). If the defendant takes a direct appeal
to the court of appeals, the judgment of conviction becomes
final after the ninety-day period to file a petition for writ
of certiorari expires. Id. Here, the
district court entered judgment on September 1, 2004. Raybon
appealed. This court entered its order on November 4, 2005,
so the ninety-day period to file a petition for writ of
certiorari expired on February 2, 2006. Thus, Raybon