United States District Court, E.D. Tennessee
Christopher H. Steger Judge.
MEMORANDUM AND ORDER.
R. MCDONOUGH UNITED STATES DISTRICT JUDGE.
the Court is Petitioner Ronald Eugene Fox, II's pro
se motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255 (Doc. 18). Petitioner bases
his request for relief on the United States Supreme Court
case Johnson v. United States, 135 S.Ct. 2551
(2015), in which the Court held that the residual clause of
the Armed Career Criminal Act (“ACCA”) was
unconstitutionally vague. (Id.) Respondent, United
States of America, opposes Petitioner's motion. (Doc.
19.) For the reasons stated hereafter, Petitioner's
motion (Doc. 18) will be DENIED.
2010, Petitioner pled guilty to Counts Two and Three of the
indictment against him, for robbery, in violation of 18
U.S.C. § 1951 (the “Hobbs Act”), and
brandishing a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c). (Doc. 16.)
Petitioner was then sentenced to a total term of 117
months' imprisonment. (Id.) The sentence
consisted of a term of 33 months' imprisonment to be
served on Count Two of the indictment and 84 months'
imprisonment to be served on Count Three of the indictment.
(Id.) Petitioner did not file a direct appeal.
Accordingly, his conviction became final on January 3, 2011,
after the time to file a direct appeal had run. See
Fed. R. App. P. 4(b) (“In a criminal case, a
defendant's notice of appeal must be filed in the
district court within 14 days after . . . the entry of  the
judgment . . . .”). On June 6, 2016, Petitioner filed
this motion seeking an order vacating and correcting his
sentence pursuant to 28 U.S.C. § 2255. (Doc. 18.) This
motion is now ripe for the Court's review.
TIMELINESS OF PETITION
2255(f) places a one-year statute of limitations on all
petitions for collateral relief under § 2255 running
from either: (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(f).
reliance on Johnson triggers the one-year
limitations period under subsection (f)(3). See Welch v.
United States, 136 S.Ct. 1257, 1265 (2016)
(“Johnson is . . . a substantive decision and
so has retroactive effect . . . in cases on collateral
review.”). The period began to run on June 26, 2015,
when Johnson was decided. Petitioner's motion
was filed on June 6, 2016, and, as a result, Petitioner's
motion falls safely within the one-year window for requesting
STANDARD OF REVIEW
obtain relief under 28 U.S.C. § 2255, a petitioner must
demonstrate “(1) an error of constitutional magnitude;
(2) a sentence imposed outside the statutory limits; or (3)
an error of fact or law . . . so fundamental as to render the
entire proceeding invalid.” Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting
Mallett v. United States, 334 F.3d 491, 496-97 (6th
Cir. 2003)). He “must clear a significantly higher
hurdle than would exist on direct appeal” and establish
a “fundamental defect in the proceedings which
necessarily results in a complete miscarriage of justice or
an egregious error violative of due process.” Fair
v. United States, 157 F.3d 427, 430 (6th Cir. 1998).
asserts that his claim relies on a new rule of constitutional
law, citing Johnson, in which the Supreme Court held
that the residual clause of the ACCA, 18 U.S.C. §
924(e), is unconstitutionally vague. 135 S.Ct. at 2563.
Petitioner was not sentenced or subject to an enhancement
under the ACCA. (See Doc. 16.) Rather, Petitioner
appears to assert that the Supreme Court's holding in
Johnson implicates his sentence for using and
carrying a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c).
(See Doc. 18, at 7-11.) Specifically, he argues that
his conviction for Hobbs Act robbery no longer qualifies as a
crime of violence because of Johnson, and thus, his
§ 924(c) sentence cannot stand. (Id. at 9- 11.)
residual clause in the ACCA deems a “violent
felony” any crime punishable by imprisonment for a term
exceeding one year, . . . that . . . involves conduct
that presents a serious potential risk of physical
injury to another . . . . 18 U.S.C. § 924(e)
(emphasis added). Under 18 U.S.C. § 924(c)(3),
“crime of violence” is defined as an offense that
is a felony and
(A) has as an element the use, attempted
use, or threatened use of physical force against the person
or property of another, or (the ...