United States District Court, S.D. West Virginia, Huntington Division
TOBY M. DUCKETT, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE.
Toby Duckett filed the Motion to Correct Sentence under 28
U.S.C. § 2255 on June 22, 2016. Mot. to
Correct, ECF No. 64. By Standing Order, the motion was
referred to Magistrate Judge Cheryl A. Eifert for Proposed
Findings and Recommendations (“PF&R”). ECF
No. 65. Magistrate Judge Eifert issued her PF&R on
February 6, 2018, recommending that Movant's motion be
denied as untimely and that this action be dismissed.
PF&R, p. 5, ECF No. 75. Movant timely objected
to the PF&R. Objs. to PF&R, ECF No. 80.
Court must “make a de novo determination of those
portions of the . . . proposed findings or recommendations to
which objection is made.” 28 U.S.C. §
636(b)(1)(C). The Court is not required to review the factual
or legal conclusions to those portions of the findings or
recommendations to which no objections are made. Thomas
v. Arn, 474 U.S. 140, 150 (1985).
Objections state his motion is timely, despite being
convicted in 2010, because it was filed within one year of
the United States Supreme Court's decision in Johnson
v. United States, 135 S.Ct. 2551 (2015). Objs. to
PF&R, at 3. Movant claims failure to timely raise an
issue is excused when “a decision of the Supreme Court
‘may explicitly overrule one of [its]
precedents.” Id. (quoting Reed v.
Ross, 468 U.S. 1 (1984)). Movant argues Johnson
is such a case, because it overruled past cases which
rejected vagueness challenges to the “residual
clause” of the Armed Career Criminal Act
(“ACCA”),  and this case applies in Movant's
sentencing. He claims his underlying conviction of bank
robbery in violation of 18 U.S.C. § 2113(a) and (d)
“categorically fails to qualify as crime of
violence” under Johnson, and thus his
conviction of brandishing a firearm during a crime of
violence under 18 U.S.C. § 924(c) is now void. Mot.
to Correct, at 1.
as Magistrate Judge Eifert stated, and Movant failed to
address in his objections, the Fourth Circuit has explicitly
held otherwise. In United States v. McNeal, the
court stated that “bank robbery under 18 U.S.C. §
2113(a) is a ‘crime of violence' within the meaning
of the force clause of 18 U.S.C. §
924(c)(3)[.]” 818 F.3d 141, 157 (4th Cir. 2016),
cert. denied, 137 S.Ct. 164 (2016). Thus,
Johnson is inapplicable to Movant's case and his
motion is untimely. See In re Hubbard, 825 F.3d 225,
229 (4th Cir. 2016).
aforementioned reasons, the Court DENIES
Movant's Objections (ECF No. 80), ADOPTS
Magistrate Judge Eifert's PF&R (ECF No. 75),
DENIES the Motion to Correct Sentence under
28 U.S.C. § 2255 as untimely (ECF No. 64), and
DISMISSES the case from the Court's
Court DIRECTS the Clerk to send a copy of
this Order to Magistrate Judge Eifert, all counsel of record,
and any unrepresented parties.
 In Johnson, the United States
Supreme Court explained that:
[u]nder the Armed Career Criminal Act
[“ACCA”] ¶ 1984, a defendant convicted of
being a felon in possession of a firearm faces more severe
punishment if he has three or more previous convictions for a
“violent felony, ” a term defined to include any
felony that “involves conduct that presents a
serious potential risk of physical injury to
135 S.Ct. at 2555 (emphasis added) (quoting 18 U.S.C.
§ 924(e)(2)(B)). The italicized section of the
definition of violent felony “ha[s] come to be known as
the Act's residual clause.” Id. at 2556.
The Johnson Court held this language is
“unconstitutionally vague” and “that
imposing an increased sentence under the residual clause of
the [ACCA] violates the Constitution's guarantee of due
process.” Id. at 2557 & 2563. Thereafter,
in Welch v. United States, 136 S.Ct. 1257 (2016),
the Supreme Court declared that its decision in
Johnson announced a new substantive rule that should
be applied retroactively to cases on collateral review. 136
S.Ct. at 1268
 The Fourth Circuit recognizes two
independent clauses that establish a crime of violence under
§924(c)(3): the force clause and the residual clause.
See, e.g. United States v. Fuertes, 8 ...