United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE
the Court is Defendant-Petitioner's motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255.
[Doc. 1]. The Government responded. [Doc. 84]. Defendant
Petitioner replied [Doc. 85] and also provided supplemental
briefing [Doc. 87]. Because his Motion is untimely, the Court
2007, a jury found Defendant-Petitioner Damon Fisher guilty
on two counts: (1) illegally possessing a firearm as a felon
in violation of 18 U.S.C. § 922(g), and (2) knowingly
possessing a stolen firearm in violation of § 922(j).
[Docs. 61, 62]. On Count One, this Court sentenced Mr. Fisher
to fifteen years' imprisonment as an armed career
criminal. Possessing a firearm as a felon usually carries a
maximum prison term of ten years. 18 U.S.C. § 924(a)(2).
Under the Armed Career Criminal Act (ACCA), however, a person
convicted of possessing a firearm as a felon faces a minimum
of fifteen years' imprisonment if that person has three
previous convictions for a “serious drug offense”
or a “violent felony.” 18 U.S.C. § 924(e).
Mr. Fisher had at least three prior convictions that made him
eligible for this sentence enhancement: three Oklahoma
convictions for second-degree burglary; one Arizona
conviction for first-degree burglary; and one Arizona
conviction for drug distribution. [PSR, ¶ 21, Doc. 66].
On Count Two, this Court sentenced Mr. Fisher to ten
years' imprisonment, to be served concurrently to Count
One [Doc. 66]. Mr. Fisher appealed this Court's
instructions to the jury on his insanity defense and the lack
of an instruction regarding the consequences of a
not-guilty-by-reason-of-insanity verdict. On appeal, the
Tenth Circuit rejected these arguments and affirmed his
conviction. United States v. Fisher, 278 F.Appx.
810, 811 (10th Cir. May 20, 2008).
Fisher now brings this § 2255 motion arguing that the
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015), entitles him to relief.
Before Johnson, the ACCA defined “violent
felony” as “any crime punishable by imprisonment
for a term exceeding one year” that meets one of three
requirements: (1) “has as an element the use, attempted
use, or threatened use of physical force against the person
of another”-referred to as the elements
clause; (2) is “burglary, arson, or extortion, or
involves the use of explosives”-referred to as the
enumerated-offense clause; or (3) “otherwise
involves conduct that presents a serious potential risk of
physical injury to another”-referred to as the
residual clause. § 924(e)(2)(B)(i)-(ii).
Johnson invalidated only the residual clause, with
the Supreme Court deeming it unconstitutionally vague since
it “both denie[d] fair notice to defendants and
invite[d] arbitrary enforcement by judges.” 135 S.Ct.
at 2557. Now, in the wake of Johnson, a prior
conviction qualifies as a violent felony under the ACCA only
if it falls within the enumerated-felony clause or the
elements clause. Further, Johnson is retroactively
applicable to cases on collateral review, meaning a defendant
who had a prior conviction that qualified under the residual
clause may collaterally attack his sentence enhancement under
the ACCA, assuming his challenge is timely. Welch v.
United States, 136 S.Ct. 1257 (2016).
Fisher's challenge runs up against this time bar. For a
motion to be timely under 28 U.S.C. § 2255, it must be
filed either within one year of when petitioner's
conviction became final, § 2255(f)(1), or within one
year of an applicable, retroactive new rule of constitutional
law under § 2255(f)(3).
Mr. Fisher's motion is not timely under § 2255(f)(3)
because Johnson is not applicable to his sentence:
Johnson affected the constitutional validity of only
the residual clause. Though Mr. Fisher argues he was
sentenced pursuant to this clause, his argument lacks merit:
his Oklahoma convictions for second-degree burglary fell
within the enumerated-offense clause under 18 U.S.C. §
924(e)(2)(B)-not the elements clause. See, e.g., United
States v. Green, 55 F.3d 1513, 1516 (10th Cir. 1995)
(recognizing that Oklahoma's crime for second-degree
burglary qualified as an ACCA-predicate offense under the
enumerated-offense clause). Because Johnson does not
affect his sentence under the enumerated-offense clause, it
does not qualify as a new, applicable rule which would
trigger a new one-year filing period under 28 U.S.C. §
2255(f)(3). See, e.g., Stanley v. United States, __
F.3d __, 2016 WL 3514185, at *2 (7th Cir. June 27, 2016)
(“Johnson does not have anything to do with
the [enumerated-offense] clause of either the Guidelines or
the Armed Career Criminal Act, and § 2255(f)(3) does not
afford prisoners a new one-year period to seek collateral
relief on a theory that the [enumerated-offense] clause does
not apply to a particular conviction.”).
other words, because Johnson does not apply to Mr.
Fisher's sentence, § 2255(f)(3) is not an avenue for
relief. If he believed that his convictions for second-degree
burglary did not fall within 924(e)'s enumerated-felony
clause, then, under § 2255(f)(1), he had one year from
when his conviction became final to seek relief. That would
have been in August 2009-one year from the deadline for
filing a petition of certiorari with the Supreme Court.
See Fisher, 278 F.Appx. at 811; United States v.
Willis, 202 F.3d 1279, 1280 (10th Cir. 2000)
(recognizing that “where a defendant does not file a
petition for writ of certiorari with the United States
Supreme Court after a direct appeal, the judgment of
conviction is final when the time for filing a certiorari
petition expires”). Because he filed in April
2016-nearly seven years after his conviction became final-his
motion is not timely under § 2255(f)(1).
the Court denies Mr. Fisher a Certificate of Appealability
(COA) under Rule 11(a) of the Rules Governing Section 2255
Cases in the United States District Courts. Where a habeas
petition is denied on procedural grounds, Petitioner is
entitled to a COA only if he demonstrates that “jurists
of reason would find it debatable whether the petition states
a valid claim of the denial of a constituinoal right and that
jurists of reason would find it debatable whether the
district court was correct in its procedural
ruling.” Stack v. Daniel, 529 U.S. 473, 282,
120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Because Mr. Fisher
has not made this showing, he is not entitled to a COA. He
may seek a certificate from the court of appeals under
Federal Rule of Appellate Procedure 22 if he wishes to appeal
the Court's ruling on his motion.
these reasons, Mr. Fisher's motion under 28 U.S.C. ...