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Johnson v. United States

United States District Court, W.D. Tennessee, Western Division

December 20, 2017

MELVIN JOHNSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          SAMUEL H. MAYS, JR. UNITED STATES DISTRICT COURT JUDGE.

         Before the Court is Petitioner Melvin Johnson's, Prisoner No. 21790-76, Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (the “§ 2255 Motion”), filed on June 24, 2016. (§ 2255 Mot., ECF No. 1.)[1] Johnson challenges his sentence in criminal case no. 07-20041. He argues that the Supreme Court's ruling in Johnson v. United States, 135 S.Ct. 2551 (2015) -- invalidating the residual clause in 18 U.S.C. § 924(e) -- invalidates the similarly worded residual clause in 18 U.S.C. § 924(c)(3)(B), and thus that his underlying robbery offenses are not predicate offenses under § 924(c). (§ 2255 Mot. Addendum, ECF No. 1-1.) The Government responded on October 20, 2017. (ECF No. 8.) Johnson has not filed a response.

         For the following reasons, Johnson's § 2255 Motion is DENIED.

         I. Background

         On February 1, 2007, a grand jury charged Johnson with two counts of robbery affecting interstate commerce, in violation of 18 U.S.C. § 1951; three counts of use of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c); and one count of aiding and abetting robbery affecting interstate commerce, in violation of 18 U.S.C. § 1951. (Indictment, Cr. ECF No. 1.) A Superseding Indictment was returned on September 25, 2008. (Superseding Indictment, Cr. ECF No. 68.) The Superseding Indictment charged Johnson with one count of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g); two counts of aiding and abetting robbery affecting interstate commerce, in violation of 18 U.S.C. § 1951; five counts of robbery affecting interstate commerce, in violation of 18 U.S.C. § 1951; and five counts of use of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). (Id.)

         On June 22, 2009, Johnson pled guilty to one count of aiding and abetting robbery affecting interstate commerce, in violation of 18 U.S.C. § 1951; five counts of robbery affecting interstate commerce, in violation of 18 U.S.C. § 1951; and two counts of use of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). (See Cr. ECF No. 118.)

         At sentencing, Johnson was not an armed career criminal under the Armed Career Criminals Act (“ACCA”), 18 U.S.C. § 924(e). (See Presentence Investigation Report (“PSR”) ¶ 70.) Johnson qualified as a career offender. (Id.) The PSR recommended an offense level enhancement from 35 to 37, pursuant to U.S. Sentencing Commission Guidelines (the “U.S.S.G.”) § 4B1.1(b)(A). (Id.)

         Johnson was sentenced to 475 months imprisonment, and the remaining charges against Johnson were dismissed. (Judgment, Cr. ECF No. 151.)

         Judgment was entered on March 8, 2010. (Cr. ECF No. 151.) Johnson did not file a direct appeal.

         On June 24, 2016, Johnson filed the § 2255 Motion. (ECF No. 1.) The Government responded on October 20, 2017. (ECF No. 8.) Johnson has not filed a reply, and the deadline to do so has passed. (See ECF No. 7.)

         II. Timeliness

         A § 2255 motion and any amendments or supplements to it must be filed within § 2255(f)'s one-year statute of limitations. See, e.g., Berry v. United States, No. 2:14-CV-02070-STA-CGC, 2017 WL 401269, at *10 (W.D. Tenn. Jan. 30, 2017). Under § 2255(f)(1), a § 2255 motion must be filed within one year of “the date on which the judgment of conviction becomes final.” A conviction becomes final upon conclusion of direct review. Sanchez-Castellano v. United States, 358 F.3d 424, 426 (6th Cir. 2004). Under § 2255(f)(3), a petitioner may alternatively bring a § 2255 motion within one year of “the date on which the right asserted was initially recognized by the Supreme Court.” Johnson was decided on June 26, 2015. In Welch v. United States, the Supreme Court found that Johnson announced a new substantive rule that has retroactive effect in cases on collateral review. 136 S.Ct. 1257, 1265 (2016). A claim for relief based on the invalidated language in the ACCA is timely if filed within a year of Johnson. Johnson's request for Johnson relief was on June 24, 2016. Johnson's Johnson claim is timely.

         III. ...


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