HENRY E. HUDSON, Senior District Judge.
Daniel L. Heineman, a federal inmate proceeding with counsel, filed this 28 U.S.C. § 2255 Motion ("§ 2255 Motion," ECF No. 50) arguing that his firearm conviction and sentence are invalid under Johnson v. United States, 135 S.Ct. 2551 (2015). The Government filed a Motion to Dismiss the § 2255 Motion contending that it is barred by the relevant statute of limitations. (ECF No. 53.) As discussed below, while the Government correctly asserts that the § 2255 Motion is untimely, the Court also finds that Heineman's Johnson claim lacks merit.
A grand jury returned a three-count Indictment charging Heineman with conspiracy to interfere with commerce by threats and violence in violation of 18 U.S.C. § 1951(a) ("Hobbs Act robbery") (Count One), a second count of Hobbs Act robbery (Count Two), possess, brandish, and discharge a firearm in relation to a crime of violence as alleged in Count Two, in violation of 18 U.S.C. § 924(c)(1) (Count Three). (Indictment 1-3, ECF No. 1.) On December 22, 2006, Heineman pled guilty to Counts One and Two of the Indictment. (Plea Agreement ¶ 1, ECF No. 14.) On March 30, 2007, the Court sentenced Bland to sixty-three months of incarceration on Count Two and one hundred and twenty months of incarceration on Count Three to be served consecutively. (J. 2, ECF No. 28.)
On June 20, 2016, Heineman filed his § 2255 Motion arguing that, his conviction under 18 U.S.C. § 924(c) in Count Two must be vacated in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Thereafter, the Government moved to dismiss, arguing that the § 2255 Motion is barred by the relevant statute of limitations.
Under 28 U.S.C. § 2255(0(1), Heineman was required to file any 28 U.S.C. § 2255 motion within one year after his conviction became final. Accordingly, absent a belated commencement of the limitation period, Heineman's § 2255 Motion is untimely. Heineman contends that he is entitled to a belated commencement of the limitation period under 28 U.S.C. § 2255(0(3).
Section 2255(0(3) provides that a petitioner may bring a claim within a year of the date of which the right asserted was initially recognized by the Supreme Court. "[T]o obtain the benefit of the limitations period stated in § 2255(f)(3), [Heineman] must show: (1) that the Supreme Court recognized a new right; (2) that the right `has been . . . made retroactively applicable to cases on collateral review'; and (3) that he filed his motion within one year of the date on which the Supreme Court recognized the right." United States v. Mathur, 685 F.3d 396, 398 (4th Cir. 2012) (alteration in original).
The "right" asserted here is the right recognized in Johnson. In Johnson, the Supreme Court held "that imposing an increased sentence under the residual clause of the Armed Career Criminal Act [("ACCA")] violates the Constitution's guarantee of due process." 135 S.Ct. 2563.
Heineman asserts that his conviction is unlawful in light of Johnson, and in doing so, he argues that Johnson restarted the one-year limitation period pursuant to § 2255(0(3).
Heineman was convicted of brandishing a firearm during the commission of a crime of violence, to wit, Hobbs Act robbery, in violation of 18 U.S.C. § 924(c). Heineman's argument—that the residual clause of § 924(c) is unconstitutionally vague— simply was not a rule announced in Johnson. Rather, the Supreme Court's holding in Johnson only addressed the residual clause of ACCA. As the Fourth Circuit has observed, although "the Supreme Court held unconstitutionally vague the [residual clause in ACCA], ... the [Supreme] Court had no occasion to review . . . the residual clause [of § 924(c)]." United States v. Fuertes, 805 F.3d 485, 499 n.5 (4th Cir. 2015). Thus, Heineman's contention that § 924(c)'s residual clause is unconstitutionally vague was not a right announced by the Supreme Court in Johnson. See United States v. Cook, No. 1:11-CR-188, 2019 WL 921448, at *3 (E.D. Va. Feb. 25, 2019) ("[T]he question of [Sessions v. Dimaya, 138 S.Ct. 1204 (2018)] and Johnson's effect on Section 924(c)(3)(B) is not yet settled.")
Heineman's Johnson claim also lacks merit. See United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994) (noting that a district court may summarily dismiss a § 2255 motion where "files, and records `show conclusively that the movant is not entitled to relief.'" (quoting United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992))). Heineman contends that after Johnson, the offense of Hobbs Act robbery can no longer qualify as a crime of violence under 18 U.S.C. § 924(c)(3), and thus, his conviction for Count Two must be vacated. Although Heineman was not sentenced pursuant to ACCA, he asserts that the residual clause of § 924(c) is materially indistinguishable from the ACCA residual clause (18 U.S.C. § 924(e)(2)(B)(ii)) that the Supreme Court in Johnson struck down as unconstitutionally vague.
Title 18 U.S.C. section 924(c)(1)(A) provides for consecutive periods of imprisonment when a defendant uses or carries a firearm in furtherance of a crime of violence. The baseline additional period of imprisonment is five years. 18 U.S.C. § 924(c)(1)(A)(i). If the defendant brandishes the firearm, the additional period of imprisonment increases to at least seven years. Id. § 924(c)(1)(A)(ii). And, if the defendant discharges the firearm, the additional period of imprisonment increases to at least ten years. Id. § 924(c)(1)(A)(iii).
The United States can demonstrate that an underlying offense constitutes a crime of violence if it establishes that the offense is a felony and satisfies one of two requirements. Namely, the statute defines a crime of violence as any felony:
Id. § 924(c)(3). As explained below, Hobbs Act qualifies as a crime of violence under the Force Clause.
A defendant is guilty of Hobbs Act robbery if he or she "obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery. . . or attempts or conspires so to do . . . ." 18 U.S.C. § 1951(a). The statute defines "robbery" as
Id. § 1951(b)(1). The United States Court of Appeals for the Fourth Circuit has not reached the issue of whether Hobbs Act robbery satisfies the Force Clause. Nevertheless, as this Court has previously concluded, a defendant "who commits Hobbs Act robbery by `fear of injury' necessarily commits it by `fear of physical force.'" United States v. Standberry, 139 F.Supp.3d 734, 738 (E.D. Va. 2015) (citation omitted). This is because "[f]ear is the operative element facilitating the taking," and "any act or threatened act which engenders a fear of injury implicates force and potential violence." Id. at 739 (citing United States v. Castleman, 572 U.S. 157, 172 (2014); Leocal v. Ashcroft, 543 U.S. 1, 9 (2004)); see also Castleman, 572 U.S. at 174 (Scalia, J. concurring) ("[I]t is impossible to cause bodily injury without using force `capable of' producing that result."). Put simply, common sense dictates that any "fear of injury" flows from the fear of physical force.
Accordingly, consistent with this Court's earlier decisions, see Standberry, 139 F. Supp. 3d at 740, and decisions of many courts of appeal,
Lastly, the Court notes that the Fourth Circuit's recent decision in United States v. Simms, 914 F.3d 229 (4th Cir. 2019) does not alter the conclusion that Heineman's § 924(c) conviction is predicated on a valid crime of violence under the force clause of § 924(c)(3)(A). In Simms, the defendant pled guilty to conspiracy to commit Hobbs Act robbery and to brandishing a firearm during and in relation to a "crime of violence," but later challenged his brandishing conviction on the theory that Hobbs Act conspiracy could not be considered a "crime of violence" under 18 U.S.C. § 924(c)(3). Id. at 232-33. Initially, the parties and the Fourth Circuit agreed that,
Id. at 233-34 (citations to the parties' material omitted). Thereafter, the Fourth Circuit concluded that the Residual Clause of § 924(c) is void for vagueness. Id. at 236.
As explained above, unlike conspiracy to commit Hobbs Act robbery, Hobbs Act robbery is a valid crime of violence under the Force Clause because it invariably requires the actual, attempted, or threatened used of physical force. United States v. St. Hubert, 909 F.3d 335, 351 (11th Cir. 2018). Accordingly, Heineman's claim pursuant to Johnson lacks merit and will be dismissed.
The Government's Motion to Dismiss (ECF No. 53) will be granted. The § 2255 Motion (ECF No. 50) will be denied. Heineman's claim and the action will be dismissed. A certificate of appealability will be denied.
An appropriate Order shall accompany this Memorandum Opinion.
18 U.S.C. § 924(e)(1). Under the residual clause, the term violent felony had been "defined to include any felony that `involves conduct that presents a serious potential risk of physical injury to another.'" Johnson, 135 S. Ct. at 2555 (quoting 18 U.S.C. § 924(e)(2)(B)).