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Tarver v. United States

United States District Court, N.D. Alabama, Western Division

October 6, 2017

DEMARDUS TARVER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OF OPINION

          L. Scott Coogler United States District Judge.

         This is a motion to vacate, set aside, or amend a sentence under the authority of 28 U.S.C. § 2255 and Johnson v. United States, 135 S.Ct. 2551 (2015), filed pro se by Petitioner, DeMardus Tarver (“Tarver”), on June 27, 2016. (Doc. 1.) The United States has responded in opposition to the motion. (Doc. 5.) For the reasons stated below, Tarver's motion is due to be denied and this action dismissed with prejudice.

         I. Background

         In November 2013, Tarver pled guilty to four counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a); one count of discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii); and one count of brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).

         This Court sentenced him to concurrent terms of 50 months of imprisonment for the Hobbs Act robbery counts, a consecutive term of 100 months of imprisonment for the § 924(c) discharging count, and a further consecutive term of 150 months of imprisonment for the § 924(c) brandishing count. The consecutive sentences were authorized under 18 U.S.C. §§ 924(c)(1)(A)(iii) and 924(c)(1)(C)(i). Both provisions increase the statutory imprisonment ranges for a defendant who discharges or brandishes a firearm during and in relation to a “crime of violence, ” which means a felony offense that: “(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3). The predicates for both § 924(c)(1)(A) counts were his companion Hobbs Act robbery counts.

         This Court entered judgment on May 27, 2015. Tarver did not appeal his conviction. This is his first motion filed pursuant to 28 U.S.C. § 2255.

         II. Discussion

         Tarver contends that his § 924(c)(1) sentences should be invalidated in light of Johnson v. United States, 135 S.Ct. 2551 (2015), which held unconstitutional part of the Armed Career Criminal Act (“ACCA”). The ACCA increases the statutory imprisonment range for defendants convicted of three “violent felonies” and defines “violent felony” as “any crime punishable by a term of imprisonment exceeding one year that: (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). The first prong of this definition is sometimes referred to as the “elements clause, ” while the second prong contains the “enumerated crimes” clause and what is commonly called the “residual clause.” See United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). Johnson held that the residual clause of the violent felony definition was void for vagueness. See Johnson, 135 S.Ct. at 2557-60.

         Tarver was not sentenced or subject to an enhancement under the ACCA, 18 U.S.C. § 924(e). Rather, his sentence was enhanced pursuant to a distinct provision, § 924(c)(1)(A), which provides for a separate consecutive sentence if any person uses or carries a firearm during and in relation to a crime of violence or drug trafficking crime, or possesses a firearm in furtherance of such crimes, as follows:

Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime-(i) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

18 U.S.C. § 924(c)(1)(A). For the purposes of § 924(c), § 924(c)(3)(A) and (B) define “crime of violence” as an offense that is a felony and: “(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Id. § 924(c)(3).

         Tarver argues that Johnson also implicates his sentence for using and carrying a firearm during and in relation to a crime of violence, in violation of § 924(c). Specifically, he argues that Johnson also invalidates § 924(c)(3)(B).

         Tarver's motion is time-barred. He had one year from the date his conviction became final to file his § 2255 petition. See 28 U.S.C. § 2255(f)(1). Because he did not appeal his conviction, it became final when the time for filing a notice of appeal expired. Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011). Tarver was convicted on May 27, 2015, and had 14 days within which to file a notice of appeal. Fed. R. App. P. 4(b)(1)(A)(i). Therefore, his conviction became final on June 10, 2015, and he had until June 10, 2016, to file his § 2255 petition. However, Tarver did not file his petition until June 22, 2016. See Doc. 1 at 11 (Tarver attesting, under penalty of perjury, that he gave his petition to prison authorities on June 22, 2016); Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001) (“Absent evidence to the contrary . . ., we will assume that Washington's motion was delivered to prison authorities the day he signed it.”).

         Although Tarver did file his petition within one year of Johnson, which was issued on June 26, 2015, he is not entitled to tolling under § 2255(f)(3), which extends the one-year statute of limitations to the date of a right “newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” This is because while Johnson does identify such a right, see ...


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