Raybon v. United States, 16-2522

• Decision Date: 14 August 2017
• Docket Number: No. 16-2522,16-2522
• Citation: 867 F.3d 625
• Parties: Jerome RAYBON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

867 F.3d 625

Jerome RAYBON, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 16-2522

United States Court of Appeals, Sixth Circuit.

Decided and Filed: August 14, 2017

ON BRIEF: Joan E. Morgan, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Flint, Michigan, for Appellant. Shane Cralle, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

Before: NORRIS, SUHRHEINRICH, and GRIFFIN, Circuit Judges.

OPINION

SUHRHEINRICH, Circuit Judge.

Petitioner Jerome Raybon appeals the district court's denial of his 28 U.S.C. § 2255 motion, claiming that his Michigan offense of assault with intent to do great bodily harm no longer qualifies as a crime of violence under the Sentencing Guidelines after Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) ( Johnson 2015 ). We conclude that his claim is not timely under 28 U.S.C. § 2255(f)(3).

I.

In 2004, during the pre- Booker era when the Sentencing Guidelines were deemed mandatory, see United States v. Booker , 543 U.S. 220, 233, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Raybon pleaded guilty to distributing more than 50 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). As part of his plea agreement, Raybon agreed to be "held accountable for between 50 and 150 grams of cocaine base which results in a base offense level of 32." Raybon further agreed that he qualified as a career offender under the United States Sentencing Guidelines, U.S.S.G. § 4B1.1, based on a prior drug trafficking conviction and a conviction for assault with intent to do great bodily harm less than murder. The career offender designation increased his guidelines range to 262 to 327 months' imprisonment (from 140 to 175 months).¹ The district court sentenced Raybon to 295 months' imprisonment. Raybon appealed. This court affirmed based on an appeal waiver in the plea agreement.

Ten years later, under a different regime of "effectively advisory" Guidelines, see Booker , 543 U.S. at 245, 125 S.Ct. 738, Raybon moved to vacate his sentence pursuant to § 2255 based on Johnson 2015 . Johnson 2015 invalidated the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), as being unconstitutionally void for vagueness.² Johnson 2015 , 135 S.Ct. at 2557. Raybon argued that his predicate conviction for assault with intent to do great bodily harm no longer qualified as a crime of violence under an identically-worded residual clause in the career offender guideline, U.S.S.G. § 4B1.2(a)(2).³ The district court denied the motion as untimely, because it perceived Raybon's argument as actually based not on Johnson 2015 , but on Johnson v. United States, Johnson 2010, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ( Johnson 2010 ), which held that the term "physical force" in the identically-worded elements clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), means violent force. 559 U.S. at 140, 130 S.Ct. 1265. The district court held that although Raybon mentioned Johnson 2015 and asserted that it applied to his case, he basically argued that his assault conviction did not satisfy the elements clause of U.S.S.G. § 4B1.2(a)(1) because Michigan law does not require proof of "the use, attempted use, or threatened use of physical force" and was not one of the four enumerated offenses listed in U.S.S.G. § 4B1.2(a)(2). Because Raybon's argument "focuse[d] on other clauses that were not at issue in Johnson [2015 ]," the district court held that his claims should have been raised in 2006, when his conviction became final, or at the latest in 2010, after Johnson 2010 was decided. The district court also ruled on the merits, holding that assault with intent to do great bodily harm was a crime of violence under the elements clause of U.S.S.G. § 4B1.2(a)(1). Raybon appealed, and the district court issued a certificate of appealability.

II.

This court reviews the district court's denial of a motion to vacate under § 2255 de novo. Moss v. United States , 323 F.3d 445, 454 (6th Cir. 2003).

A.

We agree with the district court that Raybon's § 2255 petition was untimely, but follow a different analytical path. A § 2255 motion must be filed within one year of "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1). A conviction becomes final upon conclusion of direct review. Sanchez-Castellano v. United States , 358 F.3d 424, 426 (6th Cir. 2004). If the defendant takes a direct appeal to the court of appeals, the judgment of conviction becomes final after the ninety-day period to file a petition for writ of certiorari expires. Id. Here, the district court entered judgment on September 1, 2004. Raybon appealed. This court entered its order on November 4, 2005, so the ninety-day period to file a petition for writ of certiorari expired on February 2, 2006. Thus, Raybon had until February 2, 2007, to file his § 2255 motion. But he did not file it until June 14, 2016. His petition is therefore untimely unless he satisfies one of the exceptions found in § 2255(f).⁴

Raybon asserts that his petition is timely under § 2255(f)(3), which provides that a § 2255 petition may be filed 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." § 2255(f)(3). Raybon filed this petition on June 14, 2016, within one year of the Supreme Court's decision in Johnson 2015 , which was decided on June 26, 2015.

Johnson 2015 held that the residual clause of the ACCA is unconstitutionally vague because it "both denies fair notice to defendants and invites arbitrary enforcement by judges." Johnson 2015 , 135 S.Ct. at 2557. In Welch v. United States, the Supreme Court held that Johnson 2015 announced a new substantive rule that has retroactive effect in cases on collateral review. ––– U.S. ––––, 136 S.Ct. 1257, 1265, 194 L.Ed.2d 387 (2016). See also In re Watkins , 810 F.3d 375, 379, 382 (6th Cir. 2015) (same; issued prior to Welch ).

Beckles decided that Johnson 2015 does not apply to the advisory sentencing guidelines. See Beckles v. United States , ––– U.S. ––––, 137 S.Ct. 886, 894, 197 L.Ed.2d 145 (2017). And whether it applies to the mandatory guidelines, which contain identical language as the ACCA provision at issue in Johnson 2015 , is an open question. Justice Thomas, writing for the majority, explicitly and repeatedly stated that the Court was not addressing the pre- Booker , mandatory Guidelines scheme. And Justice Sotomayor made this point clear in her concurring opinion (without objection from the majority): "The Court's adherence to the formalistic distinction between mandatory and advisory rules at least leaves open the question whether defendants sentenced to terms of imprisonment before our decision in [ Booker ] ... may mount vagueness attacks on their sentences." Beckles , 137 S.Ct. at 903 n.4 (Sotomayor, J., concurring in the judgment). Echoes of this sentiment are also found in Johnson 2015 and Welch . See Johnson 2015 , 135 S.Ct. at 2561 (rejecting the government's argument that it was placing textually similar laws into "constitutional doubt"); Welch , 136 S.Ct. at 1262 (stating that Johnson 2015 "cast no doubt" on laws using similar language but that required an evaluation of the particular facts of the case).

Because it is an open question, it is not a "right" that "has been newly recognized by the Supreme Court" let alone one that was "made retroactively applicable to cases on collateral review." See § 2255(f)(3). See generally Tyler v Cain , 533 U.S. 656, 663-64, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) (holding that "made" means "held" under identical language in § 2244(b)(2)(A) and that it must be held retroactive by the Supreme Court).⁵ Thus, as recently explained by a district court addressing the identical issue presented here:

The analysis turns ... to whether the holding of Johnson [2015 ] established the same right that Petitioner seeks to assert in this case. I t is clear that it does not, as Johnson [2015 ]'s holding was limited to the ACCA and did not extend to other legal authorities such as the Sentencing Guidelines. Welch specifically described the substantive right established by Johnson [2015 ] as one relating to the ACCA, stating that Johnson [2015 ]:"changed the substantive reach of the Armed Career Criminal Act, altering the range of conduct or the class of person that the Act punishes." Welch , 136 S.Ct. at 1265 (internal quotation marks omitted). Welch also stated that Johnson [2015 ] "cast no doubt" on laws using similar language but that required an evaluation of the particular facts of the case. Welch , 136 S.Ct. at 1262. Johnson [2015 ] itself rejected arguments by the Government that it was placing the other laws textually similar to the ACCA into "constitutional doubt." See Johnston [sic] [2015], 135 S.Ct. at 2561.

Mitchell v. United States , No. 3:00-CR-00014, 2017 WL 2275092, at * 4 (W.D. Va. May 24, 2017) (footnotes omitted). In other words, "[b]ecause the Supreme Court has not decided whether the residual clause of the mandatory Sentencing Guidelines is unconstitutionally vague—and did not do so in Johnson [2015 ]— Petitioner's motion is untimely under § 2255(f)(3)...." Id. at *5 ; see also id. at * 7 (holding that the petitioner's challenge to his sentence under the mandatory Guidelines were procedurally barred by §§ 2255(f)(3) and 2255(h)(2) because Johnson [2015 ]'s holdings extend only to individuals convicted under the ACCA; but not issuing a final order until the Fourth Circuit issues its opinion on the same questions in United States v. Brown , Case No. 16-7056, argued May 11, 2017). See generally Dodd v. United States , 545 U.S. 353, 357-58, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005) (stating that § 2255(f)(3) is clear—relief is available one year after the Supreme Court initially recognizes...