United States District Court, D. Colorado
OPINION AND ORDER DISMISSING § 2255
S. Krieger Chief United States District Judge.
MATTER comes before the Court pursuant to Mr.
Rinker's Motion to Vacate (#29) his
sentence pursuant to 28 U.S.C. § 2255, the
Government's response (# 32), and Mr.
Rinker' reply (# 34).
2007, Mr. Rinker pled guilty to two counts of Armed Bank
Robbery in violation of 18 U.S.C. § 2113(a) and (d) and
one count of Brandishing a Firearm During A Crime of
Violence, in violation of 18 U.S.C. § 924(c). In 2008,
the Court sentenced Mr. Rinker to 97 months imprisonment on
each of the Bank Robbery counts (to be served concurrently),
and 84 months imprisonment on the Firearm count, to be served
consecutively to the Bank Robbery counts, for a total of 181
months. Mr. Rinker did not file an appeal.
20, 2016, Mr. Rinker, through counsel, filed the instant
Motion to Vacate, challenging the legal sufficiency of his
conviction on the Firearm count. He argues that the Firearm
count was necessarily predicated on 18 U.S.C. §
924(c)(3)(B) (sometimes, the “residual clause”),
and that the U.S. Supreme Court's ruling in Johnson
v. U.S., 135 S.Ct. 2551 (2015), renders that provision
of the statute unconstitutionally vague. The Government, in
response, argues that Mr. Rinker's petition is untimely.
well-settled that a habeas petition must be brought
within one year of the petitioner's conviction having
become final. 28 U.S.C. § 2255(f)(1). Mr. Rinker's
conviction became final in or about 2008, when he failed to
file a timely appeal from his sentence. Thus, any § 2255
petition Mr. Rinker filed after 2009 would be untimely.
is an exception to the one-year limitation period, however.
If the U.S. Supreme Court “newly recognize[s]” a
right and makes that finding retroactive, a defendant has one
year from the date that right is “initially
recognized” by the Supreme Court to bring a § 2255
petition invoking that new right. 28 U.S.C. §
2255(f)(3). Mr. Rinker argues that the Supreme Court decided
Johnson on June 26, 2015, and that therefore his
petition, filed on June 20, 2016, is timely under
the 10th Circuit has squarely addressed this issue
and concluded that the Supreme Court's Johnson
ruling - which declared certain portions of the Armed Career
Criminal Act (“ACCA”) void for vagueness - does
not “recognize” a new right for
defendants convicted under other federal statutes, even if
those statutes contain effectively identical language to the
ACCA. The 10th Circuit formally announced this
rule in U.S. v. Greer, 881 F.3d 1241
(10th Cir. 2018). There, a defendant was sentenced
under §4B1.2(a)(2) of the Sentencing Guidelines, which
were, at the time, considered to be mandatory. That provision
of the Guidelines contains language identical to the ACCA.
The defendant filed a § 2255 petition, invoking
Johnson and arguing that his sentence should be
vacated for the same reasons. The 10th Circuit
found that the defendant's petition was untimely, even
under §2255(f)(3), because “the only right
recognized by the Supreme Court in Johnson was a
defendant's right not to have his sentence increased
under the residual clause of the ACCA.” Id. at
1248. Even though §4B1.2(a)(2) of the Guidelines
contained identical language to the ACCA, the 10th
Circuit refused to find that Johnson
“recognized” the same right in the Guidelines
context: “Mr. Greer asserts [ ] a right not to be
sentenced under the residual clause of § 4B1.2(a)(2) of
the mandatory Guidelines. The Supreme Court has recognized no
such right. And nothing in Johnson speaks to the
issue.” Id. The clear thrust of Greer
is that Johnson claims can be timely raised only by
defendants who were actually sentenced under the
ACCA's residual clause; defendants sentenced under
analogous statutes have yet to have their rights specifically
recognized by the Supreme Court. And without Supreme Court
precedent expressly recognizing their rights in the
particular context in which they were sentenced, they cannot
rely on § 2255(f)(3) to bring what would otherwise be an
untimely § 2255 petition.
10th Circuit also has applied the rule of
Greer to cases that are factually-identical to Mr.
Rinker's. In U.S. v. Autobee, 701 Fed.Appx. 710
(10th Cir. 2017), the defendant, like Mr. Rinker,
pled guilty in 2006 to counts under 18 U.S.C. § 924(c),
arising out of armed bank robberies. Within days of
Johnson being decided in 2015, the defendant filed a
§ 2255 petition arguing that Johnson's
logic would declare § 924(c)(3)(B) unconstitutional as
well. The 10thCircuit acknowledged that its prior
precedent might support the defendant's claims on the
merits, but found the petition was untimely because
“the question is not whether a court of appeals has
recognized the right at issue, but instead whether the
Supreme Court has done so.” Id. at 714. It
held that “[e]ven if we were to conclude that the
reasoning of Johnson should be extended to
invalidate § 924(c)(3)(B) . . . Johnson does
not dictate the right Mr. Autobee asserts, as he seeks an
altogether new right the Supreme Court has yet to recognize.
Because §2255(f)(3) contemplates a new right recognized
by the Supreme Court, rather than a lower court, he cannot
avail himself of that provision.” The Circuit Court
dismissed the petition as untimely (and denied a Certificate
of Appealability). See also U.S. v. Salvador, ___
Fed.Appx. ___, 2018 WL 1001264 (10th Cir. Feb. 21,
2018) (on the same facts, finding “a defendant cannot
invoke Johnson to proceed under § 2255(f)(3)
unless the defendant is challenging on vagueness grounds the
ACCA's residual clause”).
Mr. Rinker's petition is dismissed as untimely. If at
some point in the future, the Supreme Court expressly rules
that the residual clause of § 924(c) is
unconstitutional, Mr. Rinker will then have one year in which
to: (i) seek certification from the 10th Circuit
to bring a successive petition based on the new Supreme Court
decision, and (ii) bring the petition. The Court is mindful
of the peculiar, perhaps even Kafka-esque, procedural
situation Mr. Rinker finds himself in: he continues to serve
a sentence that might very well be
unconstitutional.Nevertheless, Mr. Rinker must wait - and
serve -- until some other defendant with a timely claim is
able to convince the Supreme Court to address the language of
the statute under which he was convicted.
foregoing reasons, the Court DISMISSES Mr.
Rinker's Motion to Vacate (# 29). For
the reasons set forth in Autobee and
Salvador, the Court denies a Certificate of
Appealability. The Court GRANTS Mr.
Rinker's Motion for Extension of Time (#
 Also pending is Mr. Rinker's
Motion for Extension of Time (# 33) that
reply, which the Court grants.
 It is anticipated that the
10th Circuit will address the question of the
§ 924(c) residual clause's constitutionality in
U.S. v. Hopper, 10th Cir. No. 15-2190. A