United States v. Upshur

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