United States v. Green

• Decision Date: 06 August 2018
• Docket Number: No. 17-2906,17-2906
• Citation: 898 F.3d 315
• Parties: UNITED STATES of America v. Roy Allen GREEN, Appellant
• Court: U.S. Court of Appeals — Third Circuit

898 F.3d 315

UNITED STATES of America

v.Roy Allen GREEN, Appellant

No. 17-2906

United States Court of Appeals, Third Circuit.

Argued: June 13, 2018

Filed: August 6, 2018

Heidi R. Freese, Federal Public Defender, Frederick W. Ulrich [ARGUED], Assistant Federal Public Defender, Tammy L. Taylor, Staff Attorney, Office of Federal Public Defender, 100 Chestnut Street, Suite 306, Harrisburg, PA 17101 Counsel for Appellant

John P. Cronan, Matthew S. Miner, John M. Pellettieri [ARGUED], U.S. Department of Justice, 950 Pennsylvania Ave, N.W., Rm. 1260, Washington, D.C. 20530, David J. Freed, Stephen R. Cerutti II, Office of United States Attorney, 228 Walnut Street, P.O. Box 11754, 250 Federal Building and Courthouse, Harrisburg, PA 17108, George J. Rocktashel, Office of United States Attorney, 240 West Third Street, Suite 316, Williamsport, PA 17701, Counsel for Appellee

Before: CHAGARES, GREENBERG, and FUENTES, Circuit Judges.

OPINION

CHAGARES, Circuit Judge.

Roy Allen Green appeals the District Court’s order dismissing his 28 U.S.C. § 2255 motion challenging his sentence arising from his conviction for assault with intent to commit murder. In setting Green’s sentence, the District Court determined that he was a career offender under the residual clause of the then-mandatory Sentencing Guidelines. Green contends that the residual clause in the career offender Sentencing Guideline is unconstitutionally vague pursuant to Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), in which the Supreme Court voided the similar residual clause in the Armed Career Criminal Act ("ACCA"). The Government, relying upon the Supreme Court’s recent opinion in Beckles v. United States, ––– U.S. ––––, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017) —holding that vagueness challenges cannot be brought to the advisory Sentencing Guidelines—contends that Green’s motion is untimely because the one-year statute of limitations period to bring a challenge on collateral review had passed by the time he filed this motion. We must decide whether Johnson constituted a newly recognized right, thus providing Green a year from when Johnson was decided to file his § 2255 motion. We conclude that it did not, and will therefore affirm the District Court.

I.

In 2001, Green was sentenced to 687 months of imprisonment for convictions on federal drug and firearms charges, including a conviction for conspiracy to distribute methamphetamine. Later that same year, while serving that sentence, Green attacked another inmate with a shank. Green then pleaded guilty to one count of assault with intent to commit murder, in violation of 18 U.S.C. § 113(a)(1). At sentencing, the District Court determined that Green qualified as a "career offender" under the residual clause of the then-mandatory Sentencing Guidelines.¹ The Presentence Report ("PSR") did not specify which of Green’s prior convictions qualified as predicate offenses, but cross-referenced sections of the PSR that listed a federal drug conviction and California convictions for robbery and assault on a parole agent. Green’s classification as a career offender resulted in a Guidelines range of 151 to 188 months of imprisonment. Absent the career-offender designation, Green’s Guidelines range would have been 100 to 125 months of imprisonment. Green did not object to the PSR, and the District Court sentenced him to 151 months of imprisonment, to run consecutively to the 687 months of imprisonment that he was already serving.

Green timely appealed, and we ultimately affirmed his conviction and sentence. United States v. Green, 117 F. App'x 185, 185 (3d Cir. 2004). Within one year of the Supreme Court’s decision in Johnson, Green filed a motion to vacate, set aside, or correct his sentence pursuant to § 2255. Green argued that in light of Johnson, the residual clause of the mandatory Sentencing Guidelines is unconstitutionally vague. The District Court stayed the motion until the Supreme Court decided Beckles. After Beckles was decided, the District Court dismissed Green’s motion as untimely under 28 U.S.C. § 2255(f), holding that Green did not assert a right that was newly recognized by the Supreme Court. The District Court granted a certificate of appealability "on the issue of whether Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), ‘newly recognize[s]’ a right for petitioner under 28 U.S.C. § 2255(f)(3)." Appendix ("App.") 10. This timely appeal followed.

II.

The District Court had jurisdiction pursuant to 28 U.S.C. § 2255. We have jurisdiction pursuant to 28 U.S.C. § 2253(a) & (c). On appeal of an order denying a § 2255 motion, we review a district court’s legal conclusions de novo and factual findings for clear error. United States v. Travillion, 759 F.3d 281, 289 (3d Cir. 2014).

III.

Green argues that the Supreme Court’s opinion in Johnson, holding the residual clause of the ACCA unconstitutionally vague, also applies to cases involving the residual clause in the mandatory Sentencing Guidelines. The Government argues that due to the Supreme Court’s recent opinion in Beckles, which held that the residual clause in the advisory Sentencing Guidelines could not be subject to a void-for-vagueness challenge pursuant to Johnson, we need not reach the merits of Green’s motion because Green’s challenge is untimely. The Government contends that the statute of limitations began running when Green’s conviction became final in 2005, and thus the one-year statute of limitations period to bring a challenge on collateral review had long since passed by the time he filed this motion. Green responds that his motion is timely because it was filed within one year of Johnson, which restarted his limitations period by recognizing a new rule of constitutional law that applies to Green.

A motion filed under 28 U.S.C. § 2255 is subject to a one-year limitations period that runs from:

(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.

28 U.S.C. § 2255(f). Accordingly, a petitioner seeking collateral review under § 2255 will have one year from the date on which his judgment of conviction is final to file his petition. Id. § 2255(f)(1) ; see also Dodd v. United States, 545 U.S. 353, 357, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005). The statute also provides for three limited, alternative circumstances in which the one-year limitations period will begin to run. Here, Green contends that § 2255(f)(3) applies, and that Johnson restarted his statute of limitations period by newly recognizing the right on which his petition relies. In Dodd, the Supreme Court held that the limitations period restarts on the date of the Supreme Court decision initially recognizing the right, and not the date of the decision that thereafter makes the right retroactively applicable to cases on collateral review. See 545 U.S. at 357, 125 S.Ct. 2478 ("An applicant has one year from the date on which the right he asserts was initially recognized by this Court.").

We must begin with the text of 28 U.S.C. § 2255(f)(3) to address Green’s timeliness argument. See Rotkiske v. Klemm, 890 F.3d 422, 425 (3d Cir. 2018) (en banc). Plainly, if the "right" that Green "assert[s]" has been "recognized" by the Supreme Court within one year of the date Green filed his motion, then his motion is timely. We must determine whether the Supreme Court has recognized the right asserted by Green.

As the Supreme Court has observed, "[a] common ... definition of the word ‘recognize’ is ‘to acknowledge or treat as valid.’ " Tapia v. United States, 564 U.S. 319, 327, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011) (quoting Random House Dictionary of the English Language 1611 (2d ed. 1987) ). Thus, the Supreme Court must have formally acknowledged or treated as valid the right asserted by Green for it to be "recognized" within the meaning of § 2255(f)(3). This recognition of a right must also be definite. See United States v. Brown, 868 F.3d 297, 301 (4th Cir. 2017) ("To ‘recognize’ something is (1) ‘to acknowledge [it] formally’ or (2) ‘to acknowledge or take notice of [it] in some definite way.’ " (quoting Recognize, Merriam-Webster Tenth Collegiate Dictionary 976 (1996) ) ).

Green contends that the right underlying his claim was initially recognized when Johnson was decided, and maintains that the statute of limitations period began to run anew from that point. The Government argues that Green’s motion, filed within one year of Johnson but more than one year after his conviction became final, is untimely because the limitations period in § 2255(f)(3) does not apply, as the Supreme Court has neither recognized nor made retroactively available the right on which Green relies.

To determine whether Green can rely on Johnson to challenge his sentence, we next turn to the Supreme Court’s decisions on the ACCA’s residual clause and the Sentencing Guidelines. In Johnson, the Supreme Court considered a due process challenge to the residual clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii). The ACCA applies to a defendant convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g). See 18 U.S.C. § 924(a)(2). Ordinarily, the punishment for a violation of this prohibition is a maximum of 10 years of imprisonment. See id. However, if a defendant is an armed career criminal, the ACCA imposes a mandatory minimum sentence of 15 years and a statutory maximum...