United States District Court, D. Utah, Central Division
ORDER AND MEMORANDUM DECISION
CAMPBELL U.S. District Court Judge
2001, petitioner Mesa Rith pleaded guilty to assaulting a
federal officer in violation of 18 U.S.C. § 111(a)(1).
Now, more than a decade after his judgment of conviction
became final, Mr. Rith asks the court to correct his sentence
based on the United States Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015).
Because Johnson does not apply to his case, the
court dismisses Mr. Rith's motion as
Rith pleaded guilty to assaulting a federal officer in 2001.
Because of a prior conviction, Mr. Rith's sentence was
enhanced under the United States Sentencing Guidelines
(Guidelines) and the court sentenced him to 96 months of
imprisonment. The court set Mr. Rith's 96-month sentence
to run consecutively with a sentence imposed in another
Rith appealed his sentence, but the United States Court of
Appeals for the Tenth Circuit affirmed the judgment.
United States v. Rith, 63 Fed.App'x 463 (10th
Cir. 2003) (unpublished). In 2004, Mr. Rith moved under 28
U.S.C. § 2255 to have his sentence vacated. The court
denied his motion. (Order & Mem. Decision, Case No.
2:04-cv-787, ECF No. 10.) On April 29, 2016-eleven years
after Mr. Rith filed his first § 2255 motion-Mr. Rith
filed a second § 2255 motion, this time seeking to have
his sentence corrected after the Supreme Court's decision
Government moves to dismiss Mr. Rith's § 2255
motion. The Government argues, among other things, that Mr.
Rith's motion is barred by § 2255's statute of
limitations. Mr. Rith responds that his motion qualifies as
timely because the one-year statute of limitations restarted
when the Supreme Court decided Johnson in 2015.
district court is authorized to modify a Defendant's
sentence only in specified instances where Congress has
expressly granted the court jurisdiction to do so.”
United States v. Blackwell, 81 F.3d 945, 947 (10th
Cir. 1996). Under 28 U.S.C. § 2255, a prisoner can move
the court to vacate or correct a sentence if the sentence was
unconstitutional or otherwise illegal.
a petitioner has one year to file his § 2255 motion from
“the date on which the judgment of conviction becomes
final.” 28 U.S.C. § 2255(f)(1). But when a
petitioner asserts a right “recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review, ” the one- year period begins to run
from the “date on which the right asserted was
initially recognized by the Supreme Court.”
Id. at § 2255(f)(3).
Mr. Rith pleaded guilty to assaulting a federal officer in
2001. The Court sentenced Mr. Rith that same year. Though Mr.
Rith appealed his sentence, the Tenth Circuit rejected his
appeal in 2003. Mr. Rith did not seek review with the Supreme
Court, nor did he seek a rehearing with the Tenth Circuit.
Accordingly, his convictions became final 90 days later-in
September 2003. See United States v. Martin, 357
F.3d 1198, 1200 (10th Cir. 2004). Absent an event restarting
the one-year statute of limitations, Mr. Rith would be
time-barred from filing a petition after September 2004.
See 28 U.S.C. § 2255(f)(1).
that his motion would be time-barred, Mr. Rith contends that
the Supreme Court in Johnson recognized a right that
was made retroactively applicable to cases like his on
collateral review. In Johnson, the Supreme Court
ruled that the residual clause of the Armed Career Criminal
Act (ACCA) was unconstitutionally vague. 135 S.Ct. at 2563.
Mr. Rith asserts that because his sentence was mandatorily
enhanced under the residual clause of the Guidelines, and
because the language in the residual clause of the ACCA and
the Guidelines is identical, Johnson applies to his
Rith also acknowledges that the Supreme Court recently ruled
in United States v. Beckles that sentences imposed
after the Supreme Court's decision in United States
v. Booker, 543 U.S. 220 (2005)-where the Supreme Court
ruled that the Guidelines were advisory, not mandatory-are
not subject to vagueness challenges. 137 S.Ct. 886, 890
(2017). However, Mr. Rith was sentenced before the Supreme
Court decided Booker. As such, Mr. Rith argues that
Beckles does not bar Johnson's
application to pre-Booker sentencings.
determine whether Johnson restarted the one-year
statute of limitations for Mr. Rith's motion, the court
must ask whether Mr. Rith asserts the same right announced in
Johnson, or whether he instead asserts a new right
that the Supreme Court has yet to recognize. 28 U.S.C. §
2255(f)(3). A right qualifies as “new” if it
“is not dictated by precedent.”
Chaidez v. United States, 568 U.S. 342, 347 (2013)
(citation and internal quotation marks omitted). A right is
“dictated by precedent” only if “it is
apparent to all reasonable jurists.” Id.
(citation and internal quotation marks omitted). So the
inquiry is whether Johnson dictates invalidation of
the Guidelines' residual clause.
reviewing Johnson, the parties' briefing, and
other caselaw, the court concludes that Johnson does
not announce the right that Mr. Rith asserts:
Johnson does not dictate invalidation of the
Guidelines' residual clause. Johnson explicitly
invalidates only the residual clause of the ACCA. 135 S.Ct.
at 2563. And Justice Sotomayor confirmed in Beckles
that the Supreme Court has not yet answered “whether
defendants sentenced to terms of imprisonment before [the
Supreme Court's] decision in United States v.
Booker . . . may mount vagueness attacks on their
sentences.” Beckles, 137 ...