Barr v. United States of America

Filing 18

ORDER granting 8 motion to dismiss; dismissing 1 Motion to vacate/set aside/correct sentence (2255). The Clerk is directed to enter judgment for the United States and then to CLOSE this case. Signed by Judge Susan C Bucklew on 10/12/16. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

CLARENCE BARR,
Petitioner,
v.

CASE NO. 8:16-cv-1779-T-24 AAS
8:02-cr-401-T-24 AAS

UNITED STATES OF AMERICA,
Respondent.
/

ORDER
Petitioner Clarence Barr, represented by counsel, filed a Motion to Vacate
pursuant to 28 U.S.C. § 2255 on June 24, 2016. The United States filed a motion to
dismiss the § 2255 motion as untimely, to which Petitioner filed a response. With the
Court’s permission, the United States filed a reply to Petitioner’s response. After due
consideration, the Court finds Petitioner’s motion should be dismissed as untimely.
Petitioner pled guilty to aggravated bank robbery in violation of 18 U.S.C. §
2113(a) and (d) (count one), use of a firearm during and in relation to a crime of violence
in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (count two), and use of a firearm during and
in relation to a crime of violence (second conviction) in violation of 18 U.S.C. §
924(c)(1)(A) and (C) (count four). The Court sentenced Petitioner to a term of
imprisonment of 435 months on July 31, 2003. Petitioner filed a direct appeal, and his

sentence was affirmed on January 9, 2004. Petitioner’s sentence was reduced based on
his substantial assistance, and an Amended Judgment of imprisonment of 421 months was
entered on May 5, 2006.
Petitioner now seeks relief under the auspices of § 2255. He claims that because
the Armed Career Criminal Act’s (“ACCA”) residual clause is unconstitutionally vague, a
similarly worded statute, 18 U.S.C. § 924(c)(1)(3)(B), is also unconstitutionally vague,
and his sentence should be set aside. Petitioner’s claim for relief rests on the decision in
Johnson v. United States, 135 S.Ct. 2551 (2015), in which the Supreme Court held that
the residual cause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague,
a decision that was made retroactive on collateral review by the Supreme Court in Welch
v. United States, 136 S.Ct. 1257 (2016). Petitioner seeks to extend the holdings in
Johnson and Welch to 18 U.S.C. § 924(c) on collateral review. However, Petitioner’s
motion is untimely in that his conviction has been final for more than ten years, and he
cannot satisfy the exception to the one year statute of limitations under 28 U.S.C. §
2255(f)(3).
Johnson affords Petitioner no collateral relief with regard to his § 924(c)
convictions. First, Johnson did not address the statute under which Petitioner was
convicted. Instead, Johnson ruled on the constitutionality of the residual clause of the
ACCA, § 924(e)(2)(B)(ii). The Supreme Court has never held that any part of § 924(c) is
unconstitutionally vague. Nor has the Eleventh Circuit Court of Appeals extended
Johnson’s vagueness determination to § 924(c).
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In addition, armed bank robbery constitutes a crime of violence under the use of
force clause of § 924(c)(3)(A); thus, Petitioner’s convictions under § 924(c)(3)(A) are
valid regardless of whether the residual clause of § 924(c)(3)(B) is unconstitutional in
light of Johnson. See In re Hines, 824 F.3d 1334, 1337 (11th Cir. 2016) (concluding that
a companion conviction for armed bank robbery, in violation of 18 U.S.C. § 2113(a) and
(d), clearly qualifies as a crime of violence under the § 924(c)(3)(A) use of force clause
without regard to the § 924(c)(3)(B) residual clause).
ACCORDINGLY, for the reasons expressed, it is ORDERED AND
ADJUDGED that:
(1)

The Government’s motion to dismiss Petitioner’s § 2255 motion as
untimely (CV-Doc. 8) is GRANTED.

(2)

Petitioner’s Motion to Vacate (CV-Doc. 1; CR-Doc. 50) is DISMISSED.

(3)

The Clerk is directed to enter judgment for the United States in the civil
case and then to CLOSE the civil case.

DONE AND ORDERED at Tampa, Florida, on October 12, 2016.

Copies to: Counsel of Record

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