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.
Limon's Motion to Vacate (#149) his
sentence pursuant to 28 U.S.C. § 2255. Also pending is
Mr. Limon's Motion to Stay (# 150)
consideration of the Motion to Vacate, pending the
10th Circuit's certification of the Motion to
Vacate as a permissible successive habeas petition
under 28 U.S.C. § 2255(h).
2009, Mr. Limon pled guilty to three counts of Armed Bank
Robbery, in violation of 28 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 2007,
the Court sentenced Mr. Limon to 195 months of imprisonment
on each of the Bank Robbery counts, to be served
concurrently, and 84 months on the Firearm count, to be
served consecutively, for a total sentence of 279 months. Mr.
Limon challenged certain aspects of his sentence in a direct
appeal, but the 10th Circuit affirmed that
sentence in 2008. U.S. v. Limon, 273 Fed.Appx. 698
(10th Cir. 2008).
2009, Mr. Limon filed a pro se Motion to Vacate
(# 123) his sentence, arguing that: (i) he
was denied effective assistance of counsel at the sentencing
and appellate stages of his case, and (ii) he was
“actually innocent of the consecutive sentence”
imposed on the Firearm count because the Bank Robbery count
provided for a greater mandatory minimum sentence than did 18
U.S.C. § 924(c). The Court denied that motion in 2010 on
its merits and Mr. Limon did not timely appeal.
23, 2016, Mr. Limon, through counsel, filed the instant
Motion to Vacate. That motion challenges the legal
sufficiency of his conviction on the Firearm count (and thus,
the 84-month consecutive sentence on that count). Mr. Limon
argues that the Firearm count was necessarily predicated on
18 U.S.C. § 924(c)(3)(B), and that the U.S. Supreme
Court's ruling in Johnson v. U.S., 135 S.Ct.
2551 (2015), renders that statute (the “residual
clause”) unconstitutionally vague.
with that Motion, Mr. Limon filed the instant Motion to Stay,
acknowledging that the instant Motion to Vacate was a
“second or successive” habeas petition
under 28 U.S.C. § 2255(h), such that certification of
that motion by the 10th Circuit was required
before this Court could consider it. Mr. Limon explained that
he had moved for certification from the 10th
Circuit, but had not received a prompt ruling on that motion,
and was filing the instant Motion to Vacate prophylactically,
as the limitations period for filing his substantive petition
was about to expire. The Motion to Stay requested that the
Court “defer any order or judgment on the
Johnson motion until after the 10th
Circuit makes its certification decision.” To date, Mr.
Limon has not filed anything that indicates whether the
10th Circuit has ruled on his certification
request, nor withdrawn his request to stay consideration of
the petition pending such certification.
Court finds that it is unnecessary to await the Circuit
Court's determination of Mr. Limon's request for
leave to file a second or successive § 2255 petition
because, even if such leave were obtained, Mr. Limon's
petition would have to be dismissed as untimely in any event.
It is 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.
Limon's conviction became final on Oct. 6, 2008, when the
U.S. Supreme Court denied his petition for certiorari.
U.S. v. Limon, 129 S.Ct. 218 (2008). Thus, any
§ 2255 petition Mr. Limon filed after Oct. 6, 2009 would
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. Limon argues that the Supreme Court decided
Johnson on June 26, 2015, and that therefore his
petition, filed on June 23, 2016, is timely under
the 10th Circuit has squarely addressed this
argument 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 language identical to that in
the ACCA. The 10th Circuit formally announced this
rule in U.S. v. Greer, 881 F.3d 1241
(10thCir. 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.
Limon's. In U.S. v. Autobee, 701 Fed.Appx. 710
(10th Cir. 2017), the defendant, like Mr. Limon,
pled guilty in 2006 to counts under 18 U.S.C. § 924(c),
arising out of armed bank robberies under 18 U.S.C. §
2113(a). 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 10th
Circuit 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”).
regardless of whether the 10th Circuit would
otherwise certify Mr. Limon's petition as a second or
successive one, the petition will inevitably have to be
dismissed as untimely, unless and until the Supreme Court
expressly rules that the residual clause of § 924(c) is
unconstitutional. At that point, Mr. Limon 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
Court is mindful of the peculiar, perhaps even Kafka-esque,
procedural situation in which Mr. Limon finds himself. Soon,
he will complete the Bank Robbery portion of his sentence and
will begin serving the Firearm portion, even though that
latter sentence might very well be
unconstitutional. Nevertheless, Mr. Limon must wait - and
serve -- until some other defendant with a timely claim is
able to convince the Supreme Court to address the language in
the statute under which he was convicted.
foregoing reasons, the Court DENIES AS MOOT
Mr. Limon's Motion to Stay (# 150). The
Court DISMISSES Mr. Limon's Motion to
Vacate (# 149) as untimely. For the reasons
set forth in Autobee ...