Barksdale v. USA-2255

Filing 2

MEMORANDUM OPINION AND ORDER Denying Motion to Vacate (2255) as to Vaughn Barksdale; Order that the Court shall not issue a Certificate of Appealability; Directing the Clerk to Close this case. Signed by Judge Roger W Titus on 8/16/2018. (c/m 8/17/2018 heps, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

VAUGHN BARKSDALE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Criminal No. RWT-10-0447
Civil No. RWT-16-2559

MEMORANDUM OPINION AND ORDER
Pending before the Court are Petitioner’s (1) Application for Leave to File a Second or
Successive Section 2255 Motion (“Application for Leave”) (ECF No. 178), and (2) Motion to
Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (“Motion to Vacate”)
(ECF No. 179).
1. Background
On June 29, 2010, Petitioner’s two co-defendants entered an M&T Bank brandishing
firearms and wearing disguises and took approximately $13,560.00 from the bank.
ECF No. 97-1. When the co-defendants exited the bank, they entered a waiting motor vehicle
driven by Petitioner. Id. Later that same day, a law enforcement officer stopped the vehicle for
a traffic violation. Id. Petitioner was apprehended at the scene. Id. Officers recovered the
firearms, money, and disguises from the automobile. Id.
On July 13, 2011, Petitioner pleaded guilty to one count of armed bank robbery, in
violation of 18 U.S.C. § 2113(a), (d), and 18 U.S.C. § 2. ECF Nos. 96, 97. Application of the
United States Sentencing Guidelines (“U.S.S.G” or “Guidelines”) in the Presentence Report
(“PSR”) produced a recommended sentence of 210–262 months imprisonment. PSR at 20. This

recommendation was based on a total offense level of 32 and a criminal history category of VI.
PSR ¶¶ 26, 61. At sentencing on October 20, 2011, the Court adopted the PSR recommendations
without change and sentenced Petitioner to 250 months imprisonment. ECF No. 121. Petitioner
took a direct appeal to the Fourth Circuit, which affirmed this Court’s judgment on
December 28, 2012. ECF No. 151.
On June 27, 2016, Petitioner filed his Application for Leave and Motion to Vacate.
ECF Nos. 178, 179.
2. Application for Leave
In his Application for Leave, Petitioner asks for authorization to file a second or
successive motion under § 2255. ECF No. 178 at 5. His filing is addressed to the Fourth Circuit,
but was filed in this Court.

See id. at 1.

A petitioner is required to receive pre-filing

authorization from the appropriate court of appeals before a district court may consider a motion
under § 2255 where the petitioner has already filed, and the district court has already ruled on, a
previous motion under § 2255.
518 U.S. 651, 657 (1996).

28 U.S.C. §§ 2244(b)(3)(A), 2255(h); Felker v. Turpin,

Absent pre-filing authorization, a district court would lack

jurisdiction to consider the successive motion. United States v. Winestock, 340 F.3d 200, 205
(4th Cir. 2003).
Notwithstanding Petitioner’s Application for Leave, an examination of the dockets of this
Court reveals that Petitioner has, in fact, never filed a motion under § 2255. His Application for
Leave, therefore, even if it were filed in the proper court, is unnecessary. Accordingly, the Court
will deny it as moot.

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3. Motion to Vacate
In his Motion to Vacate, Petitioner asserts that his “sentence under 18 U.S.C.
§ 924(c)(1)(A), in relation to a crime of violence should be vacated and set aside” based on the
Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). ECF No. 179
at 2. Petitioner argues that his conviction under § 924(c) should be vacated because armed bank
robbery, the alleged predicate offense upon which the § 924(c) conviction was based, is no
longer a crime of violence under either the residual clause or the force clause of § 924(c).
Id. at 4. Petitioner’s Motion, however, is both untimely and lacks merit.
Claims under § 2255 are subject to a one-year statute of limitations, which begins to run
from the date on which the judgment of conviction becomes final, unless one of the three
exceptions applies as provided in § 2255(f)(2)–(4).1 28 U.S.C. § 2255(f). When a defendant
files a direct appeal, the one-year limitations period begins to run when the time for filing a
petition for certiorari with the U.S. Supreme Court expires, which is 90 days after the entry of the
judgment of the court of appeals.
Sup. Ct. R. 13.1.

See Clay v. United States, 537 U.S. 522, 532 (2003);

Because the Fourth Circuit affirmed this Court’s judgment on

December 28, 2012, the limitations period for filing his Motion to Vacate ended on
March 28, 2014. Petitioner, however, did not file his Motion to Vacate until June 27, 2016, more
than two years after the deadline.

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28 U.S.C. § 2255(f) states:
A 1-year period of limitation shall apply to a motion under this section. The limitation period
shall run from the latest of-(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.

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It appears that Petitioner would attempt to excuse the untimeliness of his Motion to
Vacate under § 2255(f)(3) by invoking Johnson.

See ECF No. 179.

Johnson, though, is

inapplicable to Petitioner’s case for a number of reasons. First, in Johnson, the Supreme Court
held that the residual clause of the “crime of violence” definition in the Armed Career Criminal
Act (“ACCA”) was unconstitutionally vague. 135 S. Ct. at 2557. Petitioner, however, was not
sentenced under the ACCA. Second, Petitioner’s alleged predicate crime of armed bank robbery
is a crime of violence under the “force clause” of 18 U.S.C. § 924(c)(3), not the residual clause.
In re Hubbard, 825 F.3d 225, 229 (4th Cir. 2016) (citing United States v. McNeal, 818 F.3d 141,
151-57 (4th Cir. 2016)). Third, even if Petitioner was sentenced under a residual clause in the
Guidelines, which according to his PSR he was not, any challenge under Johnson is foreclosed
by the Supreme Court’s decision in Beckles v. United States, 137 S. Ct. 886, 890 (2017), which
held that the Guidelines are not subject to the void-for-vagueness doctrine.
Moreover, even if Petitioner’s untimeliness was excused under Johnson, Petitioner was
not charged, convicted, or sentenced under § 924(c). See ECF Nos. 1, 96, 151. He also did not
receive any type of sentence enhancement for which his armed robbery conviction would have
been used as a predicate offense. The claims he has raised, therefore, are wholly meritless,
regardless of his Motion’s timeliness. Accordingly, the Court will deny Petitioner’s Motion to
Vacate.
When dismissal of a Motion to Vacate is based on procedural grounds, a certificate of
appealability will not issue unless the petitioner can demonstrate both “(1) ‘that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a constitutional
right’ and (2) ‘that jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.’”

Rouse v. Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting

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Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

As neither applies here, no certificate of

appealability shall issue.
For the foregoing reasons, it is this 16th day of August, 2018, by the United States
District Court for the District of Maryland, hereby
ORDERED, that Petitioner’s Application for Leave to File a Second or Successive
Section 2255 Motion (ECF No. 178) is DENIED AS MOOT; and it is further
ORDERED, that Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence Under
28 U.S.C. § 2255 (ECF No. 179) is DENIED; and it is further
ORDERED, that a certificate of appealability SHALL NOT ISSUE; and it is further
ORDERED, that the Clerk SHALL PROVIDE a copy of this Memorandum Opinion
and Order to Petitioner; and it is further
ORDERED, that the Clerk SHALL CLOSE Civil Action No. RWT-16-2559.

/s/
ROGER W. TITUS
UNITED STATES DISTRICT JUDGE

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