United States District Court, D. Kansas
MEMORANDUM & ORDER
W. Lungstrum United States District Judge
a jury trial, defendant James D. Brigman was convicted of
making a false statement in connection with the attempted
acquisition of a firearm and ammunition in violation of 18
U.S.C. § 922(a)(6). Mr. Brigman's base offense level
was enhanced pursuant to U.S.S.G. § 2K2.1(a)(2) because
the offense was committed subsequent to sustaining two felony
convictions for crimes of violence as defined in §
4B1.2(a). He was ultimately sentenced to 120 months
imprisonment under the then-mandatory Sentencing Guidelines.
2016, Mr. Brigman filed a motion to vacate his sentence
pursuant to 28 U.S.C. § 2255 based on Johnson v.
United States, 135 S.Ct. 2551 (2015). In
Johnson, the Supreme Court held that the residual
clause of the definition of “violent felony” in
the Armed Career Criminal Act was unconstitutionally vague.
In his motion, Mr. Brigman contends that the residual clause
contained in § 4B1.2(a)'s definition of “crime
of violence” is unconstitutionally vague in light of
Johnson and, accordingly, that his underlying felony
conviction for attempted aggravated battery under Kansas law
no longer qualifies as a “crime of violence” for
purposes of the offense level enhancement under § 4B1.2.
The court stayed Mr. Brigman's motion pending the Supreme
Court's decision in Beckles v. United States,
137 S.Ct. 886 (2017). In Beckles, the Supreme Court
held that Johnson does not apply to sentences
imposed under § 4B1.2 because the Guidelines are not
subject to vagueness challenges. The Court, however, left
open the question whether defendants (like Mr. Brigman)
sentenced under mandatory, pre-Booker Guidelines may
mount vagueness attacks on their sentences. After
Beckles, then, the court lifted the stay in this
case and permitted supplemental briefing on Mr. Brigman's
motion. That briefing is now complete and the motion is ripe
for resolution. As will be explained, Mr. Brigman's
motion relies on a new right the Supreme Court has not yet
recognized and, accordingly, the re-starting of the one-year
limitation period provided by 28 U.S.C. § 2255(f)(3)
does not apply-at least not yet. The Supreme Court may
announce in the future a new rule of constitutional law
applicable to the mandatory Guidelines and make that rule
retroactive on collateral review. At that time, Mr. Brigman
may be able to obtain collateral relief. But until that time,
Mr. Brigman's motion does not meet the requirements of 28
U.S.C. § 2255(f)(3). Thus, the court dismisses Mr.
Brigman's motion as untimely.
government contends, among other things, that Mr.
Brigman's motion must be dismissed because it is untimely
filed. A defendant's § 2255 motion is
governed by the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), which establishes a one-year
limitations period for federal prisoners seeking habeas
relief. Under 28 U.S.C. § 2255(f), a criminal defendant
may file a habeas petition one year from the latest of four
(1) the date on which the judgment of conviction becomes
(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
(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). Mr. Brigman relies on the
Johnson opinion to trigger the limitations period
set forth in § 2255(f)(3). As noted earlier, the Supreme
Court in Johnson held that the residual clause of
the Armed Career Criminal Act was unconstitutionally vague.
It is undisputed that the Supreme Court announced a new rule
in Johnson, which was then made retroactive in
Welch v. United States, 136 S.Ct. 1257 (2016). The
threshold timeliness question, then, is whether the new rule
announced in Johnson applies to Mr. Brigman's
claim under the mandatory Guidelines. Mr. Brigman asserts
that his claim requires only a simple application of the new
rule articulated in Johnson to the “closely
analogous” context of mandatory sentencing Guidelines.
The government, on the other hand, urges that Mr.
Brigman's claim requires an extension of Johnson
not yet recognized by the Supreme Court-essentially, a second
“new rule” that would apply Johnson and
the constitutional vagueness doctrine to a provision of the
then-mandatory sentencing Guidelines.
the Tenth Circuit nor any other Circuit Court of Appeals has
decided whether a motion raising a Johnson-based
challenge against the mandatory Guidelines' residual
clause is properly raised under § 2255(f)(3).
Nonetheless, it appears that every district court that has
addressed this issue has held that such motions must be
dismissed as untimely. See, e.g., Davis v.
United States, 2017 WL 3129791, at *4 (E.D. Wis. July
21, 2017) (collecting cases in mandatory Guidelines context
and following those cases); Miller v. United States,
2017 WL 2937949, *3 (D. Utah July 10, 2017) (“Because
neither the Supreme Court nor the Tenth Circuit has directly
recognized a right to modify a sentence increased under the
residual clause of USSG § 4B1.2 before Booker,
the court concludes that Petitioner's § 2255 motion
is untimely.”); United States v. Beraldo, 2017
WL 2888565, at *2 (D. Or. July 5, 2017) (dismissing motion as
untimely because the right not to be subjected to a sentence
enhancement pursuant to a vague mandatory Guidelines is not
the same right recognized in Johnson); Hirano v.
United States, 2017 WL 2661629, at *7-8 (D. Hawaii June
20, 2017); United States v. Autrey, 2017 WL 2646287,
at *4 (E.D. Va. June 19, 2017) (“[I]t is clear that
Johnson did not establish a new ‘right'
applicable to defendant or the mandatory Guidelines.”);
Mitchell v. United States, 2017 WL 2275092, at *5
(W.D. Va. May 24, 2017) (“Because the Supreme Court has
not decided whether the residual clause of the mandatory
Sentencing Guidelines is unconstitutionally vague . . .
Petitioner's motion is untimely under §
2255(f)(3).”); Hodges v. United States, 2017
WL 1652967, at *3 (W.D. Wash. May 2, 2017) (while “the
Supreme Court may still decide that the Guidelines as they
were applied prior to Booker are subject to a
vagueness challenge based on the Court's analysis in
Johnson, ” it has not done so yet); United
States v. Russo, 2017 WL 1533380, at *3-4 (D. Neb. Apr.
district courts have uniformly concluded that the Supreme
Court's holding in Johnson did not create a
newly-recognized right that allows petitioners to challenge
the constitutionality of their sentence under the mandatory
Guidelines' residual clause. The court finds the
reasoning of these cases persuasive. Moreover, the court has
uncovered no case (and Mr. Brigman cites none) finding that a
petitioner sentenced under the mandatory Guidelines may
timely file a § 2255 petition based on Johnson.
Mr. Brigman, nonetheless, urges that an application of
Johnson in the context of the mandatory sentencing Guidelines
does not create a new rule. In support of that argument, he
relies on the Supreme Court's cases in Godfrey v.
Georgia, 446 U.S. 420 (1980); Maynard v.
Cartwright, 486 U.S. 356 (1988); and Stringer v.
Black, 503 U.S. 222 (1992). In Godfrey, the
Supreme Court held that Georgia's “outrageously or
wantonly vile, horrible and inhuman” aggravator for
purposes of capital sentencing was unconstitutionally vague
in violation of the Eighth Amendment. Similarly, in
Maynard, the Court held that Oklahoma's
“especially heinous, atrocious, or cruel”
aggravator was unconstitutionally vague. In
Stringer, the Supreme Court determined that
Maynard was not a “new rule” in light of
Godfrey and Maynard did indeed involve
somewhat different language. But it would be a mistake to
conclude that the vagueness ruling of Godfrey was
limited to the precise language before us in that case. In
applying Godfrey to the language before us in
Maynard, we did not “break new ground.”
. . . . Maynard was, therefore, for purposes of
Teague, controlled by Godfrey, and it did
not announce a new rule.
Stringer, 503 U.S. at 229. Mr. Brigman, then,
contends that the vagueness holding in Johnson is
not limited to the ACCA and may be applied to the mandatory
guideline context without “breaking new ground.”
court disagrees. Maynard presented the Court with
only a minor variation of the aggravator at issue in
Godfrey-and both cases arose in the same context of
a jury instruction defining the HAC aggravator for purposes
of capital sentencing. But the statute as issue in
Johnson functions differently than the career
offender provision of the Guidelines, even in the
pre-Booker context. Davis, 2017 WL 3129791,
at *5. For while a career offender designation under the
mandatory Guidelines removed a district court's
discretion to impose a below-Guidelines sentence, an ACCA
enhancement mandates a sentence 5 years above the statutory
maximum for the crime. See id. In other words, even
pre-Booker, the ...