MEMORANDUM OPINION

MATTHEW W. BRANN, District Judge.

Petitioner Edward F. Latimore filed a Motion to Correct Sentence Under 28 U.S.C. § 2255. For the reasons discussed below, his petition is dismissed as untimely.

I. BACKGROUND

On July 27, 2001, John Latimore pled guilty to possession of contraband by an inmate,1 threatening to assault a correctional officer,2 and attempting to cause a riot.3 On October 18, 2001, he was sentenced by this Court to 96 months' imprisonment for those crimes.4 He continues to serve that sentence in a federal penitentiary.

On June 20, 2016, Mr. Latimore filed a Motion to Correct Sentence Under 28 U.S.C. § 2255. In his petition, he alleged that he was sentenced as a "career offender" under the United States Sentencing Guidelines ("Guidelines"); that his career offender status was determined using the Guidelines' "residual clause"; that the Guidelines' residual clause is unconstitutionally vague in light of Johnson v. United States;5 and that his sentence, therefore, should be vacated and corrected.

On September 15, 2016, this Court stayed proceedings on Mr. Latimore's petition in light of the Supreme Court's grant of a writ of certiorari in Beckles v. United States.6 The Beckles decision was issued on March 6, 2017,7 and the stay was lifted the same day. The United States responded to the petition on April 18, 2017, and Mr. Latimore replied to that response on April 26, 2017.

II. LAW

A petition filed under 28 U.S.C. § 2255 faces a one-year period of limitations that runs from:

When a petitioner is relying on "a right . . . newly recognized by the Supreme Court" — i.e., the limitations provision of 28 U.S.C. § 2255(f)(3) — he must point to a "new rule" on which he relies.9 As the Supreme Court has noted, a "new rule" in this context is one "not dictated by precedent existing at the time the [petitioner's] conviction became final."10 If a Supreme Court holding was not "apparent to all reasonable jurists" at the time it was rendered, it was not "dictated by" existing precedent and is, therefore, a "new rule."11

Here, as his "new rule," Mr. Latimore points to Johnson, where the Supreme Court held that a provision of the Armed Career Criminal Act ("ACCA") was unconstitutional.12 A defendant convicted under the ACCA normally faces up to 10 years' imprisonment;13 a defendant with three or more earlier convictions for either a "serious drug offense" or a "violent felony," however, faces a minimum of 15 years' imprisonment.14 A "violent felony," in turn, is defined to include, inter alia, an offense punishable by more than one year imprisonment that "involves conduct that presents a serious potential risk of physical injury to another."15 These last thirteen words, which seek to capture crimes not otherwise covered by the remainder of the ACCA's definition of "violent felony," have become known as the "residual clause."16 In Johnson, the Supreme Court, "convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges," held the clause unconstitutionally vague and violative of due process.17

After Johnson was decided, a number of defendants challenged sentences imposed pursuant a residual clause in the Guidelines.18 Noting that the Guidelines' residual clause is identical to the unconstitutionally vague residual clause in the ACCA, the defendants argued that their sentences, too, were constitutionally problematic. Some courts were receptive to this approach, and others were not. In United States v. Calabretta, for example, the United States Court of Appeals for the Third Circuit, relying on Johnson, held the Guidelines' residual clause unconstitutionally vague;19 the United States Court of Appeals for the Eleventh Circuit, in In re Griffin, came to the opposite conclusion.20 The Supreme Court solved some of this confusion in Beckles when it held that the Guidelines — including their residual clause — are not subject to vagueness challenges,21 at least in cases where the Guidelines were merely advisory.22

III. ANALYSIS

Mr. Latimore's petition is untimely. It is true that Johnson announced a "new rule" providing relief to defendants sentenced under the ACCA's residual clause.23 In light of Beckles, however, it is clear that Johnson did not announce a "new rule" providing relief to defendants sentenced pursuant to the Guidelines' residual clause — even if those defendants were sentenced when the Guidelines were mandatory.

Johnson dealt with the ACCA, not the Guidelines, and Mr. Latimore's assertion is that he was sentenced pursuant to the Guidelines' residual clause, not the ACCA's. Although some courts, including our Court of Appeals, have determined that the Guidelines' residual clause is unconstitutionally vague "in light of" Johnson,24 that conclusion is not "dictated by" Johnson.25 Nor, as was illustrated in Beckles,26 has it yet been "recognized" by the Supreme Court.27 Therefore, Mr. Latimore cannot rely on 28 U.S.C. § 2255(f)(3), and his petition, filed more than one year after his conviction became final in 2002,28 must be dismissed.29

IV. CONCLUSION

Because Mr. Latimore's petition was filed more than one year after his conviction became final, and because he is unable to rely on the limitations provision of 28 U.S.C. § 2255(f)(3), his petition is untimely and is, therefore, dismissed. Because "reasonable jurists could debate whether [his] petition should have been resolved in a different manner,"30 however, the court grants a certificate of appealability on this issue.31

An appropriate Order follows.