United States v. Arrington

• Decision Date: 13 July 2021
• Docket Number: No. 19-3086,19-3086
• Citation: 4 F.4th 162
• Parties: UNITED STATES of America, Appellee v. Derrek E. ARRINGTON, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

4 F.4th 162

UNITED STATES of America, Appellee

v.Derrek E. ARRINGTON, Appellant

No. 19-3086

United States Court of Appeals, District of Columbia Circuit.

Argued May 7, 2021

Decided July 13, 2021

Lisa B. Wright, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A. J. Kramer, Federal Public Defender. Tony Axam Jr., Assistant Federal Public Defender, entered an appearance.

Daniel J. Lenerz, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Elizabeth Trosman, Assistant U.S. Attorney at the time the brief was filed, and John P. Mannarino, Assistant U.S. Attorney.

Before: Rogers, Tatel, and Walker, Circuit Judges.

Dissenting opinion filed by Circuit Judge Walker.

Tatel, Circuit Judge:

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), an otherwise untimely habeas petition is timely if it is filed within a 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." 28 U.S.C. § 2255(f)(3). In this case, a habeas petitioner argues that the Supreme Court's decision in Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which struck down the Armed Career Criminal Act's "residual clause" as unconstitutionally vague, invalidates his sentence because his sentencing judge arrived at it in reliance on an identical "residual clause" contained in the U.S. Sentencing Guidelines. The question presented here is whether the "right asserted" by the petitioner was, as he argues, "initially recognized by the Supreme Court" in Johnson . Because it was, we reverse the district court's decision denying the petition as untimely.

I.

On September 18, 2000, a federal jury convicted Derrek Arrington of assaulting a federal officer with a dangerous weapon in violation of 18 U.S.C. § 111(a) and (b), and of unlawfully possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g). Applying the U.S. Sentencing Guidelines, the judge calculated a 210- to 262-month sentencing range, which became 210 to 240 months because of the 10-year statutory maximum on each count. Because the judge sentenced Arrington before the Supreme Court rendered the Sentencing Guidelines advisory in United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that range was mandatory. The judge then sentenced Arrington to 240 months in prison.

Arrington faced a heightened sentencing range because of two Guidelines provisions. (Since Arrington was sentenced under the 2000 version of the Guidelines, our citations and discussion refer exclusively to that edition.) The first provision, section 2K2.1(a), applies a higher base offense level for the unlawful possession of a firearm "if the defendant had at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(2). The second, section 4B1.1, classifies a defendant as "a career offender" and applies a sentencing enhancement if, among other things, "the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1. Both provisions refer to a "crime of violence," which the operative version of the Guidelines defined as "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a). That last portion—"or otherwise involves conduct that presents a serious potential risk of physical injury to another"—is known as the definition's "residual clause." The sentencing judge found that Arrington qualified as a "career offender" under section 4B1.1 and that Arrington's unlawful possession count qualified for an enhanced base offense level under section 2K2.1(a)(2) because Arrington had at least two prior robbery convictions that qualified as "crimes of violence." We affirmed on direct appeal. United States v. Arrington , 309 F.3d 40 (D.C. Cir. 2002).

In December 2003, Arrington filed a pro se motion for post-conviction relief under 28 U.S.C. § 2255, which the district court denied in April 2007. We then denied his application for a certificate of appealability.

Arrington's present petition follows several intervening legal developments central to the issue before us. As already mentioned, the Supreme Court in Booker rendered the Sentencing Guidelines advisory while Arrington's first petition was still pending. Booker , 543 U.S. at 245, 125 S.Ct. 738. Then, on June 26, 2015, the Court held in Johnson that the constitutional "prohibition of vagueness in criminal statutes" applies "to statutes fixing sentences" and that the Armed Career Criminal Act of 1984's (ACCA) "residual clause" was unconstitutionally vague. Johnson , 576 U.S. at 595–97, 135 S.Ct. 2551. Under the ACCA, "a defendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a ‘violent felony,’ a term defined" in the ACCA's so-called residual clause, just as in the Sentencing Guidelines, "to include any felony that ‘involves conduct that presents a serious potential risk of physical injury to another.’ " Id . at 593, 135 S.Ct. 2551 (quoting 18 U.S.C. § 924(e)(2)(B)(ii) ). Finally, shortly after deciding Johnson , the Supreme Court held that " Johnson announced a substantive rule that has retroactive effect in cases on collateral review." Welch v. United States , ––– U.S. ––––, 136 S. Ct. 1257, 1268, 194 L.Ed.2d 387 (2016).

On April 27, 2016, just days after that retroactivity decision and within a year of Johnson , Arrington filed a petition with our court for leave to file an attached successive section 2255 motion challenging his sentencing enhancements in light of Johnson . Shortly thereafter, a motions panel authorized him to file his petition. Arrington then filed a supplemental motion in May 2017 and, a little over two years later, the district court denied his motion as untimely. United States v. Arrington , No. 1:00-CR-00159 (RCL), 2019 WL 4644381 (D.D.C. Sept. 24, 2019). Arrington now appeals.

II.

Under AEDPA, a federal prisoner may petition a district court to vacate, set aside, or correct his sentence on the grounds "that the sentence was imposed in violation of the Constitution or laws of the United States, ... or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Section 2255(f) imposes a timeliness requirement on such a petition: "A 1-year period of limitation shall apply to a motion under this section." Id. § 2255(f). "The limitation period shall run from the latest of" several events, including, as relevant here, "the date on which the judgment of conviction becomes final," id. § 2255(f)(1), or "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," id. § 2255(f)(3). A renewed limitations period under the latter provision, section 2255(f)(3), begins when the Court declares a new right, not when it deems the right retroactive. See Dodd v. United States , 545 U.S. 353, 356–60, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005).

Arrington's petition is timely if, as he argues, section 2255(f)(3) applies, since then the statute of limitations would have begun running when the Supreme Court decided Johnson less than a year before Arrington filed his petition. But if section 2255(f)(3) does not apply, then Arrington's petition is untimely, since his limitation period would have begun to run when his conviction became final in 2003. See Arrington v. United States , 537 U.S. 1241, 123 S.Ct. 1373, 155 L.Ed.2d 212 (2003) (denying petition for a writ of certiorari on direct review); Clay v. United States , 537 U.S. 522, 527, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003) ("Finality attaches when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires."). Whether Arrington's motion is timely under section 2255(f)(3) is a question of law we review de novo. United States v. Scurry , 992 F.3d 1060, 1065 (D.C. Cir. 2021).

Determining whether section 2255(f)(3) applies requires us to answer two related questions, both prompted by that section's text. First, what "right" did the Supreme Court "recognize" in Johnson ? And second, does Arrington "assert" that right here?

In Johnson , the Supreme Court considered whether the ACCA's residual clause—identical to the clause appearing in the Guidelines—could "survive[ ] the Constitution's prohibition of vague criminal laws." 576 U.S. at 593, 135 S.Ct. 2551. Holding that it could not, the Court explained that the residual clause violated the Fifth Amendment's requirement that "statutes fixing sentences" must "give ordinary people fair notice of the conduct [they] punish[ ]" and must not be "so standardless that [they] invite[ ] arbitrary enforcement." Id. at 595–96, 135 S.Ct. 2551. Because the ACCA's residual clause asked whether the crime "involves conduct" presenting too much risk of physical injury, rather than whether it has "as an element the use" of force, it "require[d] courts to ... picture the kind of conduct that the crime involves in the ordinary case, and ... judge whether that abstraction presents a serious potential risk of physical injury." Id. at 596, 135 S.Ct. 2551 (internal quotation marks omitted). By tying "the judicial assessment of...