United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE
27, 2016, defendant Ramsey Nathaniel Hogan filed a motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255 (Dkt. # 42). Section 2255 provides that
“[a] prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States .
. . may move the court which imposed the sentence to vacate,
set aside or correct the sentence.”
November 22, 2004, a magistrate judge signed a complaint
charging defendant with interference with commerce by threats
or violence in violation of 18 U.S.C § 1951, also known
as the Hobbs Act, and brandishing, using, and carrying a
firearm during and in relation to a crime of violence in
violation 18 U.S.C. § 924(c). Dkt. # 1. A grand jury
subsequently returned an indictment charging defendant with
seven count of Hobbs Act robbery (counts one, three, five,
seven, nine, ten, and twelve), six counts of possessing a
firearm during and in relation to a crime of violence (counts
two, four, six, eight, eleven, and thirteen), and one count
of being a felon in possession of a firearm (count fourteen).
The underlying crime of violence for each of the firearms
charges was Hobbs Act robbery. The case was assigned to the
Honorable Sven Erik Holmes, but the case was randomly
reassigned to the Honorable H. Dale Cook. Dkt. ## 10, 18.
Defendant pled guilt to two counts of using or carrying a
firearm during and in relation to a crime of violence in
violation of § 924(c) (counts two and eleven), and
pursuant to a plea agreement, the remaining charges were to
be dismissed at sentencing. Dkt. # 27, at 2. Defendant was
sentenced to 84 months as to count two and 300 months as to
count eleven, and the sentences were ordered to run
consecutively. Dkt. # 30. Defendant filed a notice of appeal,
but the appeal was dismissed as untimely. See Dkt.
## 33, 36.
27, 2016, defendant filed a § 2255 motion (Dkt # 42)
arguing that he is entitled to relief under the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015), and he asks the Court to vacate his
convictions under § 924(c). In Johnson, the
Supreme Court found that the residual clause of the Armed
Career Criminal Act, 18 U.S.C. § 924(e) (ACCA), was
unconstitutionally vague in violation of the Due Process
Clause of the Fifth Amendment. Johnson, 135 S.Ct. at
2556-57. In Welch v. United States, 136 S.Ct. 1257
(2016), the Supreme Court held that Johnson is
retroactively applicable to cases on collateral review.
Johnson was decided by the Supreme Court on June 26,
2015, and a motion seeking relief under Johnson
would be timely if it were filed no later than June 27,
2016. See Dodd v. United States, 545
U.S. 353 (2005) (one year statute of limitation under §
2255 (f)(3) runs from the date that the Supreme Court
initially recognized a new constitutional right, rather than
the date the new right was made retroactive to cases on
collateral review). The Court ordered plaintiff to respond to
defendant's § 2255 motion. Dkt. # 45. Plaintiff
filed a motion asking the Court to stay this case in light of
a case pending before the Tenth Circuit, because it appeared
that the Tenth Circuit would decide in United States v.
Hopper, Appeal No. 15-2190, whether the reasoning of
Johnson applied to the definition of “crime of
violence” provided in § 924(c)(3). The Court
stayed the case pending a ruling in Hopper. Dkt. #
5, 2018, the Court lifted the stay following decisions in
Hopper and United States v. Salas, 889 F.3d
681 (10th Cir. 2018). Salas was issued before
Hopper and, in Salas, the Tenth Circuit
found that the residual clause of § 924(c)(3)(B) is
unconstitutionally vague in light of the Supreme Court's
decision in Sessions v. Dimaya, 138 S.Ct. 1204
(2018). The Court appointed counsel to represent defendant
and set briefing deadlines on defendant's § 2255
motion. Dkt. # 52. Before the response could be filed, the
Tenth Circuit issued its decision in United States v.
Melgar-Cabrera, 892 F.3d 1053 (10th Cir. 2018), in which
the Tenth Circuit determined that Hobbs Act robbery qualifies
as a crime of violence under the elements clause of §
924(c)(3)(A). The elements clause, in part, defines a
“crime of violence” as any offense that
“has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another . . . .” 18 U.S.C. §
924(c)(3)(A). The Tenth Circuit determined that the use or
threatened use of violent force was a necessary element of
Hobbs Act robbery, and Hobbs Act robbery qualifies as a
“crime of violence” under § 924(c).
Melgar-Cabrera, 892 F.3d at 1065-66.
argues that defendant's § 2255 motion is untimely
based on the Tenth Circuit's decision in United
States v. Greer, 881 F.3d 1241 (10th Cir. 2018). In
Greer, the Tenth Circuit narrowly construed the new
constitutional right recognized in Johnson and
stated that Johnson merely allows a defendant to
challenge the validity of a sentence under the ACCA.
Id. at 1248. The defendant in Greer asked
the Tenth Circuit to apply the reasoning of Johnson
to the United States Sentencing Guidelines (USSG), but the
Tenth Circuit found that this was not a true Johnson
claim. Id. Defendant argues that Greer has
been “possibly abrogated” and it would be
“ill-advised for this Court to resolve the issue of
timeliness before the Tenth Circuit resolves the fate of
Greer.” Dkt. # 55, at 5. Since defendant's
reply was filed, the Tenth Circuit issued a decision in
United States v. Pullen, 913 F.3d 1270 (10th Cir.
2019), finding that Johnson did not create a new
rule of constitutional law that would allow a § 2255
claimant to challenge the residual clause of USSG §
4B1.2. In an unpublished decision, the Tenth Circuit found
that a challenge to the definition of “crime of
violence” contained in § 924(c)(3)(B)(ii) did not
fall within the scope of the rule recognized in
Johnson, and a defendant challenging his conviction
under § 924(c) could not rely on Johnson to
show that his motion was timely under § 2255(f)(3).
United States v. Wing, 730 Fed.Appx. 592 (10th Cir.
Apr. 4, 2018). The Court finds that defendant's
challenge to his § 924(c) convictions does not fall
within the scope of the new rule of constitutional law
recognized in Johnson, and he cannot rely on §
2255(f)(3) to show that his § 2255 motion is timely.
Defendant argues that Greer has been called into
question, but recent decisions by the Tenth Circuit have
affirmed the holding of Greer that a
Johnson claim must seek relief from a sentence
imposed under the ACCA. Defendant was not sentenced under the
ACCA and he has not asserted a Johnson claim.
Defendant has not identified a Supreme Court decision other
than Johnson that has been made retroactively
applicable to cases on collateral review, and he has not
shown that his § 2255 motion is timely under §
2255(f)(3). Defendant's motion was not filed within one
year of the date that his convictions became final, and he
cannot establish that his motion was timely under §
2255(f)(1). The Court has considered whether defendant's
§ 2255 motion could be timely under any other provision
of § 2255(f), and neither § 2255(f)(2) nor §
2255(f)(4) could be applicable. Defendant has failed to show
that his § 2255 motion is timely, and his motion (Dkt. #
42) should be dismissed as time-barred.
also argues that Melgar-Cabrera is dispositive of
the claim raised in defendant's § 2255 motion.
Defendant acknowledges that Melgar-Cabrera appears
to foreclose his challenge to the validity of his convictions
under § 924(c), but he seeks to preserve his argument
that Melgar-Cabrera was wrongly decided. Dkt. # 55.
The Court notes that defendant has challenged whether Hobbs
Act robbery qualifies as a crime of violence under §
924(c)(3)(A), and this argument is preserved for the purpose
of appeal. However, Melgar-Cabrera is binding
precedent and plaintiff is correct that
Melgar-Cabrera would require the Court to reject
defendant's challenge to the validity of his §
924(c) convictions if he had filed a timely § 2255
Court has considered the claim raised in defendant's
§ 2255 motion (Dkt. # 42) and finds that his motion
should be dismissed as time-barred. Rule 11 of the Rules
Governing Section 2255 Proceedings instructs that
“[t]he district court must issue or deny a certificate
of appealability when it enters a final order adverse to the
applicant.” Pursuant to 28 U.S.C. § 2253, the
court may issue a certificate of appealability “only if
the applicant has made a substantial showing of the denial of
a constitutional right, ” and the court
“indicates which specific issue or issues satisfy
[that] showing.” A petitioner can satisfy that standard
by demonstrating that the issues raised are debatable among
jurists, that a court could resolve the issues differently,
or that the questions deserve further proceedings. Slack
v. McDaniel 529 U.S. 473, 483-84 (2000) (citing
Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
After considering the record in this case, the Court
concludes that a certificate of appealability should not
issue as defendant has not made a substantial showing of the
denial of a constitutional right. The record is devoid of any
authority suggesting that the Tenth Circuit Court of Appeals
would resolve the issues in this case differently.
IS THEREFORE ORDERED that defendant Ramsey Nathaniel
Hogan's motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255 (Dkt. # 42) is
dismissed as time-barred. A separate
judgment of dismissal is entered herewith.
 When calculating the one year statute
of limitations under § 2255, federal courts refer to
Fed.R.Civ.P. 6(a) to compute the applicable deadline.
United States v. Hurst, 322 F.3d 1256, 1260 (10th
Cir. 2003). Under Rule 6(a)(1)(C), if a deadline falls on a
Saturday, Sunday, or legal holiday, the time period continues
to run until the next day that is not a weekend or legal
holiday. June 26, 2016 was a Sunday and defendant's
deadline to file a § 2255 motion asserting a
Johnson claim was June 27, 2016.
 Unpublished decisions are not
precedential, but may be cited for their persuasive value.
See Fed. R. App. P. ...