Duckett v. United States of America

Filing 81

MEMORANDUM OPINION AND ORDER DENIES adopting the 75 Proposed Findings and Recommendations by Magistrate Judge Eifert; denying Movant's 80 Objections; denying the 64 Motion to Correct Sentence under 28 U.S.C. § 2255 as untimely; and dismissing the case from the Court's docket. Signed by Judge Robert C. Chambers on 4/5/2019. (cc: Magistrate Judge Eifert; counsel of record; any unrepresented parties) (jsa)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

TOBY M. DUCKETT,
Movant,
v.

CASE NO. 3:16-05629
Criminal Case No. 3:10-00075

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
Movant Toby Duckett filed the Motion to Correct Sentence under 28 U.S.C. § 2255 on
June 22, 2016. Mot. to Correct, ECF No. 64. By Standing Order, the motion was referred to
Magistrate Judge Cheryl A. Eifert for Proposed Findings and Recommendations (“PF&R”). ECF
No. 65. Magistrate Judge Eifert issued her PF&R on February 6, 2018, recommending that
Movant’s motion be denied as untimely and that this action be dismissed. PF&R, p. 5, ECF No.
75. Movant timely objected to the PF&R. Objs. to PF&R, ECF No. 80.
This Court must “make a de novo determination of those portions of the . . . proposed
findings or recommendations to which objection is made.” 28 U. S. C. § 636(b)(1)(C). The Court
is not required to review the factual or legal conclusions to those portions of the findings or
recommendations to which no objections are made. Thomas v. Arn, 474 U.S. 140, 150 (1985).
Movant’s Objections state his motion is timely, despite being convicted in 2010, because
it was filed within one year of the United States Supreme Court’s decision in Johnson v. United
States, 135 S. Ct. 2551 (2015). Objs. to PF&R, at 3. Movant claims failure to timely raise an issue
is excused when “a decision of the Supreme Court ‘may explicitly overrule one of [its] precedents.”

Id. (quoting Reed v. Ross, 468 U.S. 1 (1984)). Movant argues Johnson is such a case, because it
overruled past cases which rejected vagueness challenges to the “residual clause” of the Armed
Career Criminal Act (“ACCA”),1 and this case applies in Movant’s sentencing. He claims his
underlying conviction of bank robbery in violation of 18 U.S.C. § 2113(a) and (d) “categorically
fails to qualify as crime of violence” under Johnson, and thus his conviction of brandishing a
firearm during a crime of violence under 18 U.S.C. § 924(c) is now void. Mot. to Correct, at 1.
However, as Magistrate Judge Eifert stated, and Movant failed to address in his objections,
the Fourth Circuit has explicitly held otherwise. In United States v. McNeal, the court stated that
“bank robbery under 18 U.S.C. § 2113(a) is a ‘crime of violence’ within the meaning of the force
clause of 18 U.S.C. § 924(c)(3)[.]”2 818 F.3d 141, 157 (4th Cir. 2016), cert. denied, 137 S. Ct.
164 (2016). Thus, Johnson is inapplicable to Movant’s case and his motion is untimely. See In re
Hubbard, 825 F.3d 225, 229 (4th Cir. 2016).

1

In Johnson, the United States Supreme Court explained that:
[u]nder the Armed Career Criminal Act [“ACCA”] of 1984, a
defendant convicted of being a felon in possession of a firearm faces
more severe punishment if he has three or more previous convictions
for a “violent felony,” a term defined to include any felony that
“involves conduct that presents a serious potential risk of physical
injury to another.”

135 S. Ct. at 2555 (emphasis added) (quoting 18 U.S.C. § 924(e)(2)(B)). The italicized section of
the definition of violent felony “ha[s] come to be known as the Act's residual clause.” Id. at 2556.
The Johnson Court held this language is “unconstitutionally vague” and “that imposing an
increased sentence under the residual clause of the [ACCA] violates the Constitution's guarantee
of due process.” Id. at 2557 & 2563. Thereafter, in Welch v. United States, 136 S. Ct. 1257 (2016),
the Supreme Court declared that its decision in Johnson announced a new substantive rule that
should be applied retroactively to cases on collateral review. 136 S. Ct. at 1268
2
The Fourth Circuit recognizes two independent clauses that establish a crime of violence
under §924(c)(3): the force clause and the residual clause. See, e.g. United States v. Fuertes, 805
F.3d 485, 498 (4th Cir. 2015).

For the aforementioned reasons, the Court DENIES Movant’s Objections (ECF No. 80),
ADOPTS Magistrate Judge Eifert’s PF&R (ECF No. 75), DENIES the Motion to Correct
Sentence under 28 U.S.C. § 2255 as untimely (ECF No. 64), and DISMISSES the case from the
Court’s docket.
The Court DIRECTS the Clerk to send a copy of this Order to Magistrate Judge Eifert, all
counsel of record, and any unrepresented parties.
ENTER:

April 5, 2019

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE