JOSEPH DiCLERICO, Jr., District Judge.
Gary Sahlin moved to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255.
Sahlin pled guilty in September of 2003 to charges of bank robbery, under §§ 2331(a) and (d), and use of a semi-automatic weapon during a crime of violence, under § 924(c)(1)(B)(ii). He was sentenced on February 17, 2003, to two terms of imprisonment, each 120 months, to be served consecutively. The amended judgment was entered on February 23, 2004. His conviction and sentence were affirmed on February 22, 2005.
28 U.S.C. § 2255(f) imposes a one-year limitation period on petitions under § 2255. The one-year period runs from the latest of four events, which include "the date on which the judgment of conviction becomes final," and "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)(1) & (3). When a petitioner has appealed his conviction but not sought a writ of certiorari, the date on which the judgment of conviction becomes final is ninety days after the court of appeals enters judgment.
Sahlin filed his petition on June 28, 2016, long after his conviction became final in the spring of 2005. Therefore, the petition is untimely under § 2255(f)(1).
Sahlin contends that his petition is timely under § 2255(f)(3) based on the holding in
The government moves to dismiss the petition, arguing that
Therefore, Sahlin's challenge to his conviction and sentence, based on a theory that the Supreme Court recognized a new right under § 924(c) in
In a proceeding under § 2255, the court's final decision is appealable only if a circuit justice or the district court issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). "A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right." § 2253(c)(2). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further."
Sahlin did not address the issue of a certificate of appealability in his objection to the motion to dismiss. Nevertheless, as explained in Kucinski, courts could and do disagree on the issue of whether
In addition, Sahlin's claim would fail because his conviction and sentence were not based on the residual clause of § 924(c). Sahlin's crime of violence for purposes of § 924(c) was bank robbery in violation of § 2113(a). Bank robbery in violation of § 2113(a) is a crime of violence pursuant to the elements clause, § 924(c)(3)(A).
Therefore, because
For the foregoing reasons, the government's motion to dismiss (document no. 15) is granted.
The court declines to issue a certificate of appealability because the petitioner has not made a substantial showing of the denial of a constitutional right as required under § 2553(c)(2).
The clerk of court shall enter judgment accordingly and close the case.
SO ORDERED.