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United States v. Goodman

United States District Court, N.D. Oklahoma

July 29, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES LESLIE GOODMAN, Defendant.

          OPINION AND ORDER

          CLAIRE V. EAGAN UNITED STATES DISTRICT JUDGE

         Now before the Court is defendant James Leslie Goodman's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 (Dkt. # 128). 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.” 28 U.S.C. § 2255(a).

         I.

         On November 5, 2008, a grand jury returned a superseding indictment (Dkt. # 34), charging defendant with four counts of Hobbs Act robbery in violation of 18 U.S.C. §§ 1951(a), 1951(b)(1), and 1951(b)(3) (counts one, three, five, and seven); and four counts of using, carrying, 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) (counts two, four, six, and eight). On March 31, 2011, defendant pleaded guilty to four counts of Hobbs Act robbery (counts one, three, five, and seven); and one count of using, carrying, and brandishing a firearm during and in relation to a crime of violence (count four). Dkt. # 124. Pursuant to a plea agreement, the remaining charges in the indictment and superseding indictment were to be dismissed at sentencing. Dkt. # 122. On April 29, 2011, defendant was sentenced to 54 months as to counts one, three, five, and seven, each count consecutive to the other, and seven years as to count four, consecutive to any other term of imprisonment. Dkt. # 126, at 2.

         On June 24, 2016, defendant filed a § 2255 motion to vacate his conviction under § 924(c), [1]arguing that the underlying offense of Hobbs Act robbery fails to qualify as a “crime of violence” under § 924(c). Dkt. # 128, at 4. For the purpose of a conviction under § 924(c), § 924(c)(3) defines “crime of violence” 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, ” 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.”[2] With respect to § 924(c)(3)(B), defendant relies on the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). In Johnson, the Supreme Court found that the residual clause of § 924(e)(2)(B), which defines “violent felony” for purposes of a conviction under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA), is unconstitutionally vague. Johnson, 135 S.Ct. at 2556-57.[3] Defendant argues that § 924(c)(3)(B) should also be held unconstitutional, because it is “materially indistinguishable” from § 924(e)(2)(B)(ii). Further, defendant argues that Hobbs Act robbery does not constitute a “crime of violence” under § 924(c)(3)(A), because it does not have as an element the use, attempted use, or threatened use of physical force against the person or property of another. Accordingly, defendant argues that he is actually innocent of the § 924(c)(1)(A)(ii) offense to which he pleaded guilty.

         On August 9, 2016, this Court issued a stay pending a decision in United States v. Hopper, Appeal No. 15-2190, in which the Tenth Circuit was expected to determine whether the reasoning of Johnson applies to the definition of “crime of violence” provided in § 924(c)(3). Dkt. # 131. Before issuing a decision in Hopper, the Tenth Circuit issued a decision in United States v. Salas, 889 F.3d 681 (10th Cir. 2018), finding that the residual clause of § 924(c)(3)(B) is unconstitutionally vague in light of the Supreme Court precedent. On June 6, 2018, following the decisions in Hopper, 723 Fed. App'x 645 (10th Cir. May 25, 2018), and Salas, the Court lifted the stay, appointed counsel for defendant, and ordered plaintiff to file a response to defendant's § 2255 motion. Dkt. # 135. Before plaintiff could file a response, the Tenth Circuit issued its decision in United States v. Melgar-Cabrera, 892 F.3d 1053 (10th Cir. 2018), holding that Hobbs Act robbery constitutes a “crime of violence” under § 924(c)(3)(A). Id. at 1066.

         II.

         In its response (Dkt. # 138), plaintiff argues that defendant's § 2255 motion should be dismissed as untimely. Section 2255 motions are subject to a one-year statute of limitations, running 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.

§ 2255(f).

         Defendant's motion was not filed within one year of the date that his conviction became final; thus, he cannot establish that his motion was timely under § 2255(f)(1). Moreover, 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. Further, plaintiff argues that defendant cannot establish that his motion was timely under § 2255(f)(3) 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. ...


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