Charles Chubb, Jr. v. United States

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 18a0013n.06

No. 17-3352

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

CHARLES CHUBB, JR. ) Jan 08, 2018

) DEBORAH S. HUNT, Clerk

Petitioner-Appellant, )

)

v. ) ON APPEAL FROM THE

) UNITED STATES DISTRICT

UNITED STATES OF AMERICA ) COURT FOR THE SOUTHERN

) DISTRICT OF OHIO

Respondent-Appellee. )

)

)

Before: SUTTON, KETHLEDGE, and LARSEN, Circuit Judges.

LARSEN, Circuit Judge. Charles Chubb filed a motion to vacate his sentence under

28 U.S.C. § 2255. The district court denied the motion. Chubb claims that he is entitled to relief

based on the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015).

Because Chubb’s motion was untimely, we affirm.

I.

In 1992, a jury found Charles Chubb guilty of conspiracy to distribute cocaine base, in

violation of 21 U.S.C. § 846; possession with intent to distribute cocaine base, in violation of

21 U.S.C. § 841; and carrying a firearm during and in relation to a drug trafficking offense, in

violation of 18 U.S.C. § 924(c). United States v. Chubb, 992 F.2d 1217 (6th Cir. 1993)

(unpublished table decision). Due to his prior state convictions for attempted robbery and

kidnapping, the district court found Chubb to be a career offender under the then-mandatory

Sentencing Guidelines and sentenced him to 327 months’ imprisonment for the drug convictions,

No. 17-3352

Chubb v. United States

with a consecutive 60-month sentence for the firearm conviction. See U.S.S.G. § 4B1.1 (1991);

United States v. Chubb, No. CR-2-92-009(1), 2007 WL 3025342, at *1 (S.D. Ohio Oct. 15,

2007).

In June 2015, the Supreme Court held that the residual clause of the Armed Career

Criminal Act’s (ACCA) definition of a “violent felony,” 18 U.S.C. § 924(e)(2)(B)(ii), was so

vague as to violate the Constitution’s guarantee of due process. Johnson, 135 S. Ct. at 2563. In

December 2015, Chubb filed this § 2255 motion, claiming that Johnson entitled him to relief

from his designation as a career offender. He argued that because the Sentencing Guidelines’

definition of a “crime of violence” contains a residual clause identical to that contained in the

ACCA, it too is unconstitutionally vague. He maintained further that his prior state conviction

for kidnapping could trigger his designation as a career offender only under the Guidelines’

residual clause.1 See U.S.S.G. § 4B1.2(1)(ii) (1991).

The district court denied Chubb’s motion, citing Beckles v. United States, 137 S. Ct. 886,

890, 896 (2017), which held that the Sentencing Guidelines, as rendered advisory by United

States v. Booker, 543 U.S. 220, 245 (2005), are not subject to vagueness challenges. Chubb

appealed, arguing that Beckles does not control because he was sentenced before Booker, when

the Guidelines were mandatory.

II.

We affirm the district court’s judgment that Chubb’s motion should be denied, but we do

so because the motion was untimely under § 2255(f). To be timely, a § 2255 motion must be

filed within one year of the latest of:

1

The United States disputes this claim, arguing that the state kidnapping conviction qualifies as an enumerated

offense under U.S.S.G. § 4B1.2. Because we hold that Chubb’s motion was untimely, we need not decide this

question.

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Chubb v. United States

(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). Chubb asserts that his motion, filed more than two decades after his

conviction became final, is timely under § 2255(f)(3) because it was filed within one year of the

Supreme Court’s decision in Johnson.

We recently rejected this argument in Raybon v. United States, 867 F.3d 625 (6th Cir.

2017). Raybon held that whether Johnson applies to the mandatory Guidelines is an “open

question,” a point it found supported by the majority and concurring opinions in Beckles. Id. at

629–30. The right Chubb claims based on Johnson, therefore, is not a “‘right’ that ‘has been

newly recognized by the Supreme Court’ let alone one that was ‘made retroactively applicable to

cases on collateral review.’” Id. at 630 (quoting § 2255(f)(3)). Chubb’s motion, then, fails to

satisfy the requirements of § 2255(f)(3), as did the petitioner’s motion in Raybon.2 Id. at 630–31.

Chubb does not allege that his motion satisfies any of the other subsections of § 2255(f);

accordingly, we find his motion untimely and affirm the judgment of the district court.3

2

Chubb argues that this case should be held in abeyance because his counsel says that she “knows” that the

petitioner in Raybon plans to petition the Supreme Court for a writ of certiorari. We do not think that a sufficient

reason to hold this case in abeyance.

3

The government advances three alternative arguments in support of affirmance, including that Chubb’s motion, his

fourth filed under § 2255, should be denied under § 2255(h) as an improper successive motion. Because Chubb’s

motion is untimely under Raybon and, therefore, must be denied, we need not consider the government’s alternative

arguments.

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