United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
Aiken United States District Judge.
2009, defendant Johnathan Darrell Singleton pleaded guilty to
bank robbery. He was sentenced to 151 months'
imprisonment, to be followed by three years' supervised
release. The Court based that sentence, in part, on the
parties' stipulation that defendant was a career offender
under the United States Sentencing Guidelines ("the
Guidelines"). Defendant's career offender
designation rested on a determination that his prior
convictions under Oregon law-for Assault II, Robbery III, and
Burglary I-were crimes of violence within the meaning of a
provision of the Guidelines known as the residual
clause. The career offender designation
substantially increased defendant's advisory Guidelines
range. With the career offender designation, the range was
151 to 188 months; without the designation, the range would
have dropped to 70 to 87 months.
Armed Career Criminal Act ("ACCA") also contains a
residual clause. Johnson v. United States, 135 S.Ct.
2551, 2555-56 (2015). On June 26, 2015, the Supreme Court
held that the ACCA's residual clause was
unconstitutionally vague. Id. at 2557. Within a year
of that decision, defendant-like many other incarcerated
individuals in this district and across the nation-filed a
motion to vacate or correct his sentence under 28 U.S.C.
§ 2255. In his initial motion, defendant argued that
Johnson''$ holding logically extended to the
Guidelines' textually-identical residual clause. He
contended that his sentence had been imposed in violation of
the Due Process Clause because, without the residual clause,
his prior convictions for robbery and burglary would not have
qualified as predicate offenses and his Guidelines range
would not have been enhanced by the career offender
designation. In March 2017, the Supreme Court held that the
advisory Guidelines are immune to vagueness challenges.
See Beckies v. United States, 137 S.Ct, 886, 897
(2017). After Beckies, the arguments defendant
initially advanced in support of his 2255 motion could not
Beckies, defendant filed a supplemental memorandum
in support of his 2255 motion. In that memorandum, he pivoted
to a new argument: that, in view of the Supreme Court's
announcement that the ACCA's residual clause is "a
black hole of confusion and uncertainty that frustrates any
effort to impart some sense of order and direction[, ]"
Johnson, 135 S.Ct. at 2562 (internal quotation marks
omitted), use of the Guidelines' residual clause to
nearly double his advisoiy Guidelines range resulted in a
sentence that is disproportionately and arbitrarily harsh, in
violation of the Fifth and Eighth Amendments.
government does not respond to the merits of defendant's
supplemental brief. Instead, it contends that this Court
lacks jurisdiction to consider those arguments because
defendant's 2255 motion is untimely.
under 28 U.S.C. § 2255 are subject to a one-year
limitations period. That period runs from the latest of:
(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). Neither subsection (2) nor (4) is
at issue here, and defendant's judgment of conviction
became final eight years ago. Accordingly, the parties agree
that the petition is untimely unless subsection (3) applies.
They further agree that in order for that subsection to
apply, the right defendant asserts in his 2255 motion must be
the same right the Supreme Court "newly recognized"
in Johnson and "made retroactively
applicable" on collateral review in Welch v. United
States, 136 S.Ct. 1257 (2016).
Ninth Circuit has not established a test for determining the
scope of a newly recognized right for the purposes of §
2255(f)(3). In a recent District of Oregon decision, Judge
McShane thoroughly reviewed the case law on this question.
See United States v. Patrick, 2017 WL 4683929, *3
(D. Or. Oct. 18, 2017). In Patrick, the defendant
had been sentenced before the Supreme Court decided
United States v. Booker, 543 U.S. 220 (2005). In his
2255 motion, the defendant argued that although
Beckles foreclosed relief on vagueness grounds for
those sentenced according to the advisory
(post-Booker) Guidelines, Johnson recognized a
right applicable in mandatory Guidelines cases. The
government responded that the petition was untimely because,
although Johnson might have laid the
foundation for an argument regarding the mandatory
Guidelines, it did not recognize a right applicable
in mandatory Guidelines cases.
Patrick, Judge McShane found that most courts use
one of two methods to identify the scope of the right
recognized in a particular Supreme Court case. Some courts
limit the newly recognized right to the "narrow rule
announced" in the case, i.e., the holding. 2017
WL 4683929 at *3. Other courts take a broader approach,
wherein the newly recognized right flows from "the
principles announced in a Supreme Court case" and is
more analogous to the decision's reasoning. Id.
(emphasis omitted). Patrick also discussed a
"potential third approach to defining what qualifies as
a newly recognized right." 2017 WL 4683929 at *5. That
approach-which defendant here also employs-is to define the
phrase "newly recognized right" to mean the same
thing as "new rule" under the retroactivity
analysis of Teagae v. Lane, 489 U.S. 288 (1989).
Id. That would mean that a right asserted in a 2255
petition is the same right newly recognized in a Supreme
Court decision if that decision requires the
district court to grant the motion. See Ezell v. United
States, 778 F.3d 762, 766 (9th Cir. 2015) (stating that
a case recognizes a new rule for Teague purposes if
the result is "not dictated by precedent")
(emphasis omitted). Judge McShane adopted the first, narrow
approach and denied the defendant's motion. Id.
it unnecessary to decide which approach is correct because,
in this case, defendant's motion is untimely under all
three approaches. It is clearest that defendant's motion
must be dismissed under the first approach because defendant
asserts a right different than the narrow right announced in
Johnson's holding, which concerned the
ACCA's residual clause and the vagueness doctrine.
Application of the third approach does not present a very
difficult question, either, Johnson did not discuss
the Eighth Amendment, the advisory Guidelines, or how either
one might interact with the Fifth Amendment's
general prohibition on disproportionate or arbitrary
punishments. Johnson's statements about the
hopeless indeterminacy of the residual clause establish a
solid starting point for the merits of defendant's
arguments, but I cannot conclude that Johnson would
require me to grant defendant's motion; there
are simply too many logical leaps between Johnson
and the result defendant seeks. Granting defendant's