United States District Court, M.D. Pennsylvania
Matthew W. Brann, United States District Judge.
John Hemby filed a Motion to Correct Sentence Under 28 U.S.C.
§ 2255. For the reasons discussed below, his petition is
dismissed as untimely.
August 30, 2002, John Hemby pled guilty to assault on a
federal officer, and on February 1, 2003, he was sentenced
by this Court to 96 months' imprisonment for that crime.
He continues to serve that sentence in a federal
9, 2016, Mr. Hemby filed a Motion to Correct Sentence Under
28 U.S.C. § 2255. In his petition, he alleged that he
was sentenced as a “career offender” under the
United States Sentencing Guidelines
(“Guidelines”); that his career offender status
was determined using the Guidelines' “residual
clause”; that the Guidelines' residual clause is
unconstitutionally vague in light of Johnson v. United
States; and that his sentence, therefore, should
be vacated and corrected.
August 8, 2016, this Court stayed proceedings on Mr.
Hemby's petition in light of the Supreme Court's
grant of a writ of certiorari in Beckles v. United
States. The Beckles decision was issued
on March 6, 2017,  and the stay of Mr. Hemby's petition
was lifted on June 1, 2017. The United States responded to
the petition on June 16, 2017, and Mr. Hemby replied to that
response on June 23, 2017.
petition filed under 28 U.S.C. § 2255 faces a one-year
period of limitations that runs from:
(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.
petitioner is relying on “a right . . . newly
recognized by the Supreme Court” - i.e., the
limitations provision of 28 U.S.C. § 2255(f)(3) - he
must point to a “new rule” on which he
relies. As the Supreme Court has noted, a
“new rule” in this context is one “not
dictated by precedent existing at the time the
[petitioner's] conviction became
final.” If a Supreme Court holding was not
“apparent to all reasonable jurists” at the time
it was rendered, it was not “dictated by”
existing precedent and is, therefore, a “new
as his “new rule, ” Mr. Hemby points to
Johnson, where the Supreme Court held that a
provision of the Armed Career Criminal Act
(“ACCA”) was unconstitutional. A defendant
convicted under the ACCA normally faces up to 10 years'
imprisonment; a defendant with three or more earlier
convictions for either a “serious drug offense”
or a “violent felony, ” however, faces a minimum
of 15 years' imprisonment. A “violent felony,
” in turn, is defined to include, inter alia,
an offense punishable by more than one year imprisonment that
“involves conduct that presents a serious potential
risk of physical injury to another.”These last
thirteen words, which seek to capture crimes not otherwise
covered by the remainder of the ACCA's definition of
“violent felony, ” have become known as the
“residual clause.” In Johnson, the
Supreme Court, “convinced that the indeterminacy of the
wide-ranging inquiry required by the residual clause both
denies fair notice to defendants and invites arbitrary
enforcement by judges, ” held the clause
unconstitutionally vague and violative of due
Johnson was decided, a number of defendants
challenged sentences imposed pursuant a residual clause in
the Guidelines. Noting that the Guidelines' residual
clause is identical to the unconstitutionally vague residual
clause in the ACCA, the defendants argued that their
sentences, too, were constitutionally problematic. Some
courts were receptive to this approach, and others were not.
In United States v. Calabretta, for example, the
United States Court of Appeals for the Third Circuit, relying
on Johnson, held the Guidelines' residual clause
unconstitutionally vague; the United States Court of
Appeals for the Eleventh Circuit, in In re Griffin,
came to the opposite conclusion. The Supreme Court solved
some of this ...