United States District Court, N.D. Alabama, Southern Division
action is before the court on the motion to vacate, set
aside, or correct sentence, filed pursuant to 28 U.S.C.
§ 2255 by Charles Eugene Pritchett. In the underlying
criminal case, Pritchett pleaded guilty to one count of
conspiracy to commit robbery of a controlled substance, in
violation of 18 U.S.C. § 2118(d) (Count One); one count
of robbery of a controlled substance, in violation of 18
U.S.C. § 2118(a) and (c)(1) (Count Two); one count of
carrying or using a firearm in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c)(1) (Count
Three); and, one count of possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1)
(Count Four). He was sentenced on October 3, 2005, to
imprisonment for a term of 125 months as to Counts One, Two,
and Four, separately and concurrently, and 240 months as to
Count Three, to be served consecutively to the sentence
imposed for Counts One, Two, and Four. The total sentence was
§ 2255 motion must be filed within one year of the
latest of the following occurrences:
(1) the date on which the judgment of conviction becomes
(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
(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.
28 U.S.C. § 2255(f).
conviction and sentence became final no later than July 27,
2006, ninety days after the Eleventh Circuit affirmed the
conviction on April 27, 2006. See Kaufmann v.
United States, 282 F.3d 1336, 1338 (11th Cir. 2002)
(“[E]ven when a prisoner does not petition for
certiorari, his conviction does not become
‘final' for purposes of § 2255(1) until the
expiration of the 90-day period for seeking
certiorari.”) (alteration supplied). That was
more than ten years before Pritchett filed his § 2255
motion on June 27, 2016. Even so, Pritchett argues that his
motion was timely because it was filed within a year of the
Supreme Court's decision in Johnson v. United
States, - U.S. -, 135 S.Ct. 2551 (2015), which, he says,
newly recognized the right he asserts in his motion.
well-established that the Johnson decision announced
a new rule that is retroactive to cases on collateral review,
thereby allowing potential § 2255 movants one year from
the date of that decision to assert their arguments.
See, e.g., Beeman v. United
States, 871 F.3d 1215, 1219 (11th Cir. 2017).
Unfortunately for Pritchett, however, the claim he asserts is
not of the same type that was newly recognized in the
invalidated, as unconstitutionally vague, the so-called
“residual clause” of 18 U.S.C. §
924(e)(2)(B)(ii), which provides sentencing enhancements for
persons who are convicted of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g), and who also
have three prior convictions for “violent
felonies.” Johnson, 135 S.Ct. at 2563. That
holding does not help Pritchett, because Prichett's
§ 2255 motion does not challenge the sentence he
received for his 18 U.S.C. § 922(g) conviction (Count
Four). Instead, Pritchett argues that his other
federal convictions (for robbery of a controlled substance
and conspiracy to commit robbery of a controlled substance)
are not “crimes of violence” under 18 U.S.C.
§ 924(c)(1), which allows for an enhanced sentence when
the offender uses a firearm while committing a “crime
of violence.” That is not a claim that was newly
recognized by the Johnson decision. See Ovalles
v. United States, 905 F.3d 1231, 1252-53 (11th Cir.
2018) (holding that § 924(c)(3)(B) was not
unconstitutionally vague under either Johnson or the
Supreme Court's subsequent decision in Sessions v.
Dimaya, ___ U.S. ___, 138 S.Ct. 1204, 1214
(2018)). Therefore, regardless of the merits of
Pritchett's assertions, his motion cannot succeed because
it is untimely.
accordance with the foregoing, Pritchett's § 2255
motion is due to be denied. An appropriate final judgment
will be entered contemporaneously herewith.
See doc. no. 1 in No.