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United States v. Jackson

United States District Court, D. Kansas

June 29, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ISHA JACKSON, Defendant. Civil Action No. 16-2457-KHV

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL United States District Judge.

         On March 23, 2010, the Court sentenced defendant to 142 months in prison. This matter is before the Court on defendant's Motion To Vacate, Set Aside, Or Correct Sentence Pursuant To 28 U.S.C. § 2255(f)(3) (Doc. #57) filed June 23, 2016, defendant's Motion For Expedi[ted] Consideration Of 2255 Motion (Doc. #63) filed November 1, 2016, defendant's Motion For Appointment Of Counsel (Doc. #64) filed December 9, 2016 and defendant's Motion For Ruling On Movant's 2255 [Motion] Filed With This Court (Doc. #65) filed December 13, 2016. For reasons stated below, the Court overrules defendant's motions and denies a certificate of appealability as to the ruling on his Section 2255 motion.

         Factual Background

         On October 7, 2009, a grand jury charged Isha Jackson with armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d) and brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). See Indictment (Doc. #11). On December 8, 2009, without a plea agreement, defendant pled guilty to both counts. On March 23, 2010, the Court sentenced defendant to 142 months in prison.[1] Defendant appealed. On November 19, 2010, the Tenth Circuit Court of Appeals affirmed.

         On June 23, 2016, defendant filed a pro se motion to vacate his sentence under 28 U.S.C. § 2255. Defendant asserts that under Johnson v. United States, 135 S.Ct. 2551 (2015), he is entitled to a reduced sentence.

         Analysis

         The standard of review of Section 2255 petitions is quite stringent. The Court presumes that the proceedings which led to defendant's conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989).

         Defendant argues that he is entitled to relief under Johnson, which the Supreme Court decided less than one year before he filed his Section 2255 motion. In Johnson, the Supreme Court held that the residual clause portion of the “violent felony” definition under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutional under the void-for-vagueness doctrine. 135 S.Ct. at 2557-60, 2563; see Welch v. United States, 136 S.Ct. 1257, 1260-61 (2016).

         I. Procedural Bars

         The government asserts that because defendant's claim is not based on Johnson, it is barred as untimely.[2] See Government's Response To Defendant's Motion To Vacate Sentence (Doc. #61) filed July 22, 2016 at 4. Section 2255 provides a one-year period of limitation which ordinarily runs from the date on which the judgment of conviction becomes final. When defendant has filed an appeal, a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court ruling. Clay v. United States, 537 U.S. 522, 524-25 (2003). Here, the Tenth Circuit issued its mandate on November 19, 2010. The deadline to file a petition for certiorari expired on or about January 27, 2011, i.e. 69 days after the appellate court issued its mandate. See id. Therefore defendant had until January 27, 2012 to file a motion to vacate under Section 2255.

         Under Section 2255(f)(3), the Court can consider a claim which is filed after the one-year deadline, but 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.” 28 U.S.C. § 2255(f)(3). Defendant asserts that the right recognized in Johnson under the residual clause of Section 924(e)(2)(B)(ii) should also apply to his conviction under Section 924(c)(3) which contains a similar residual clause. Under Section 924(c)(3), a 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” (elements clause), or (B) “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense” (residual clause). 18 U.S.C. § 924(c)(3). Defendant argues that because the residual clause in Section 924(c)(3)(B) is similar to the unconstitutionally vague residual clause in Section 924(e)(2)(B)(ii), the Court should vacate his conviction. The Supreme Court, however, has not decided whether the Johnson rationale applies to Section 924(c)(3)(B) and if it does, whether the new rule would apply retroactively on cases on collateral review. See In re Fields, 826 F.3d 785, 787 (5th Cir. 2016); United States v. Bowen, No. 05-CR-00425, 2017 WL 131794, at *4-5 (D. Colo. Jan. 12, 2017) (right recognized in Johnson limited to specific language in § 924(e)(2)(B)(ii)).

         Because the Supreme Court has not addressed whether Johnson applies to the residual clause of Section 924(c)(3)(B), and defendant has not alleged other grounds to toll the one-year deadline, the Court overrules as untimely his claim under Johnson.

         II. Substantive Merit

         Defendant's motion also lacks substantive merit because armed bank robbery qualifies as a “crime of violence” under the elements clause of Section 924(c)(3)(A). Under this section, a crime of violence is defined as an offense that is a felony and “has an element the use, attempted use, or threatened use of physical force against the person or property of another.” Id. Defendant pled guilty to armed bank robbery, in violation of 18 U.S.C. ยงยง 2113(a) and ...


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