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Kucinski v. United States

United States District Court, D. New Hampshire

September 15, 2016

Derek Kucinski
v.
United States of America Anthony M. Shea
v.
United States of America Anthony Sawyer
v.
United States of America James C. Karahalios, Jr.
v.
United States of America Gerard Boulanger
v.
United States of America Arthur Durham
v.
United States of America Matthew Karahalios
v.
United States of America Opinion No. 2016 DNH 163

          MEMORANDUM AND ORDER

          Paul Barbadoro United States District Judge

         Derek Kucinski and six other prisoners have filed 28 U.S.C. § 2255 motions challenging their convictions under 18 U.S.C. § 924(c) for using a firearm during and in relation to a “crime of violence.”[1] A “crime of violence, ” as used in § 924(c), is a felony offense that either “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” (the “force clause”), or “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” (the “residual clause”). 18 U.S.C. § 924(c)(3). The prisoners challenge their convictions by claiming that § 924(c)'s residual clause is unconstitutionally vague.

         In this Memorandum and Order I address the government's contention that the prisoners' § 924(c) claims are barred by the statute of limitations that governs § 2255 motions.

         I. BACKGROUND

         Section 2255 motions are subject to a one-year statute of limitations. 28 U.S.C. § 2255(f). In most cases, the limitations period begins to run for § 2255 motions when a prisoner's conviction becomes final. § 2255(f)(1). If, however, a prisoner bases his motion on a new right that was announced by the Supreme Court after his conviction became final, the limitations period begins when “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.” § 2255(f)(3).

         The prisoners argue that their § 924(c) claims are timely under § 2255(f)(3) because their claims are based on a new right that the Supreme Court initially recognized in Johnson v. United States, 135 S.Ct. 2551, 2563 (2015), less than a year before they filed their § 2255 motions. Johnson held that a similar residual clause used in defining a “violent felony” for purposes of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §924(e)(2)(B)(ii), is unconstitutionally vague. Id. The Court later determined in Welch v. United States, 136 S.Ct. 1257, 1268 (2016), that Johnson announced a new rule that applies retroactively to cases on collateral review. The prisoners argue that the reasoning that led the Court to invalidate the ACCA's residual clause in Johnson requires the same result when applied to their § 924(c) claims. See Doc. No. 14 at 10-14.[2] Thus, they contend that their § 2255 motions are timely under § 2255(f)(3) because they filed their motions within a year of the date that the Court announced the right initially recognized in Johnson.

         In response, the government asserts that the new right announced in Johnson does not extend to § 924(c)'s residual clause. See Doc. No. 9 at 5 (arguing that “the Supreme Court's holding in Johnson does not address whether the residual clause of § 924(c) is void for vagueness”). Instead, the government argues that the right asserted by the prisoners falls outside the scope of the new right announced in Johnson and, therefore, applying that right to a § 924(c) claim would itself require the recognition of a new right.

         II. ANALYSIS

         Neither the Supreme Court nor the First Circuit has explained how a court should determine when the Supreme Court has recognized a new right for purposes of § 2255(f)(3). I fill that gap by applying the analytical framework the Supreme Court uses to determine whether a judicial decision announces a new rule that can be applied retroactively to cases on collateral review.

         The Supreme Court announced its current scheme for resolving retroactivity questions in a plurality opinion in Teague v. Lane, 489 U.S. 288 (1989). Teague's reasoning was later adopted by a majority of the Court and the Court refined its reasoning in several subsequent decisions. See, e.g., Sawyer v. Smith, 497 U.S. 227, 234 (1990); Lambrix v. Singletary, 520 U.S. 518, 527-28 (1997); Chaidez v. United States, 133 S.Ct. 1103, 1107 (2013). Under Teague, a case announces a new rule for retroactivity purposes if “the result was not dictated by precedent existing at the time the defendant's conviction became final.” Chaidez, 133 S.Ct. at 1107 (emphasis in original). And, as later cases explain, a “holding is not so dictated . . . unless it would have been apparent to all reasonable jurists.” Id. (quoting Lambrix, 520 U.S. at 527-28) (internal quotations omitted).

         Other courts have concluded, and I agree, that Teague's analytic framework also applies in determining whether a new right has been recognized for purposes of § 2255(f)(3). See Headbird v. United States, 813 F.3d 1092, 1095 (8th Cir. Feb. 19, 2016); United States v. Taylor, No. 1:06-CR-430, 2016 WL 4718948, at *2-*9 (E.D. Va. Sept. 8, 2016); Smith v. United States, 13-cv-924-J-34PDB, 2016 WL 3194980, at *4 (M.D. Fl. June 9, 2016). Congress enacted § 2255(f)(3) in 1996, several years after Teague, as part of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Taylor, 2016 WL 4718948, at *4. Thus, “[t]here can be no doubt that Congress was aware of the Teague framework when it enacted the AEDPA.” Id. Indeed, several of AEDPA's provisions include language that directly tracks Teague. Id. at *4, n.10 (citing 28 U.S.C. § 2255(h)(2) and 28 U.S.C. § 2254(e)(2)(A)(i)). In particular, § 2255(f)(3) itself references the Teague framework by specifying that the recognition of a new right by the Supreme Court will not restart the statute of limitations unless the right has also been made “retroactively applicable to cases on collateral review.” See Id. Thus, the text of both AEDPA as a whole, and § 2255(f)(3) in particular, strongly suggest that Congress intended courts to use Teague to determine whether the Supreme Court has recognized a new right for statute of limitations purposes.[3]

         One might nevertheless argue that the Teague framework should not apply to the statute of limitations inquiry because Teague is used to determine whether a new “rule” has been recognized for retroactivity purposes, whereas § 2255(f)(3) and other sections of AEDPA refer to the announcement of a new “right” for statute of limitations purposes.[4] Compare 28 U.S.C. § 2255(f)(3), with Teague, 489 U.S. at 301, and 28 U.S.C. §§ 2254(e)(2)(A)(i), 2255(h)(2). I decline to follow this path.

         If Congress had intended something other than the Teague framework to be used to determine when a new right has been recognized for statute of limitations purposes, a § 2255 claimant would be unable to benefit from § 2255(f)(3) when the Supreme Court announces a retroactive new rule unless the Court also determines that the new rule is based on a new right. Absent this additional determination, § 2255(f)(3) would be unavailable to collateral review claimants, and only claimants whose petitions are timely under § 2255(f)(1) could benefit from the new rule.

         Welch can be used to illustrate the problem that results if a “right” is treated differently from “rule” in this context. See Taylor, 2016 WL 4718948 at *6-*7 (using their example). If we were to assume that Johnson announced a new rule for collateral review purposes but not a new right for statute of limitations purposes, the petitioner in Welch could not benefit from the Court's determination in his case that the new right announced in Johnson also applies on collateral review. This is because the petitioner could not rely on § 2255(f)(3), as the Supreme Court did not base its new rule on a new right, and the petitioner could not rely on § 2255(f)(1) because he waited more than a ...


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