UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Gary Sahlin
v. Civil No. 16-cv-294-JD
Opinion No. 2016 DNH 216
United States of America
O R D E R
Gary Sahlin moved to vacate his conviction and sentence
pursuant to 28 U.S.C. § 2255.1 In support, he argues that his
conviction and sentence based on his guilty plea to charges of
violating
18 U.S.C. §§ 2113(a) and (d) and
18 U.S.C.
§ 924(c)(1)(B)(ii) must be vacated based on Johnson v. United
States,
135 S. Ct. 2551 (2015). The government moves to dismiss
the petition on the ground that it is untimely.
Background
Sahlin pled guilty in September of 2003 to charges of bank
robbery, under §§ 2331(a) and (d), and use of a semi-automatic
weapon during a crime of violence, under § 924(c)(1)(B)(ii). He
was sentenced on February 17, 2003, to two terms of
imprisonment, each 120 months, to be served consecutively. The
1 Although Sahlin initially was proceeding pro se, counsel was
appointed to represent him. Counsel filed an amended petition
on his behalf.
amended judgment was entered on February 23, 2004. His
conviction and sentence were affirmed on February 22, 2005.2
United States v. Sahlin, 399 F.3d 27 (1st Cir. 2005). Sahlin
did not file a petition for a writ of certiorari.
Discussion
28 U.S.C. § 2255(f) imposes a one-year limitation period on
petitions under § 2255. The one-year period runs from the
latest of four events, which include “the date on which the
judgment of conviction becomes final,” and “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.” § 2255(f)(1) & (3). When a petitioner has appealed
his conviction but not sought a writ of certiorari, the date on
which the judgment of conviction becomes final is ninety days
after the court of appeals enters judgment. Clay v. United
States,
537 U.S. 522, 525 & 532 (2003).
A. Timeliness
Sahlin filed his petition on June 28, 2016, long after his
conviction became final in the spring of 2005. Therefore, the
petition is untimely under § 2255(f)(1).
The government mistakenly represents in its motion to
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dismiss that Sahlin did not file an appeal.
2
Sahlin contends that his petition is timely under
§ 2255(f)(3) based on the holding in Johnson. In Johnson, the
Supreme Court held that the residual clause of the Armed Career
Criminal Act provided in § 924(e)(2)(B)(ii) is
unconstitutionally vague. Johnson, 135 S. Ct. at 2563. The
Court then held that Johnson recognized a new substantive rule
that applies retroactively to cases on collateral review. Welch
v. United States,
136 S. Ct. 1257 (2016). The Court, however,
did not address § 924(c)(3)(B), the clause that Sahlin
challenges.
The government moves to dismiss the petition, arguing that
Johnson did not recognize the right Sahlin asserts and that the
petition is untimely. Sahlin asks this court to hold that
Johnson applies to his challenge to the constitutionality of the
residual clause, § 924(c)(3)(B). As the court has explained in
prior cases, however, Sahlin’s argument that Johnson recognized
a new right under § 924(c), for purposes of § 2255(f)(3), was
rejected in Kucinski v. United States, 2016 WL 4926157, at *4
(D.N.H. Sept. 15, 2016), based on a well-reasoned and persuasive
analysis of the issue. As Judge Barbadoro explains, “reasonable
jurists can and do disagree on this issue” with the result “that
Johnson does not require the invalidation of § 924(c)’s residual
clause.” Kucinski,
2016 WL 4926157, at *4.
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Therefore, Sahlin’s challenge to his conviction and
sentence, based on a theory that the Supreme Court recognized a
new right under § 924(c) in Johnson, lacks merit. As a result,
§ 2255(f)(3) does not apply, and the petition was untimely
filed.
B. Certificate of Appealability
In a proceeding under § 2255, the court’s final decision is
appealable only if a circuit justice or the district court
issues a certificate of appealability. 28 U.S.C. § 2253(c)(1).
“A certificate of appealability may issue under paragraph (1)
only if the applicant has made a substantial showing of the
denial of a constitutional right.” § 2253(c)(2). “A petitioner
satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell,
537 U.S. 322, 327 (2003).
Sahlin did not address the issue of a certificate of
appealability in his objection to the motion to dismiss.
Nevertheless, as explained in Kucinski, courts could and do
disagree on the issue of whether Johnson applies to § 924(c).
Here, however, even if the court were to apply Johnson as Sahlin
asks, his petition would fail under the particular circumstances
presented.
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Johnson was decided on June 26, 2015. Sahlin filed his
petition on June 28, 2016. Therefore, Sahlin’s petition was not
filed within the one year allowed under § 2255(f)(3). See,
e.g., Roaden v. United States, 2016 WL 6875879, at *2 (E.D.
Tenn. Nov. 21, 2016); Frenzel v. United States,
2016 WL 6804358,
at *2 (E.D. Va. Nov. 17, 2016) (filing deadline to raise issue
under Johnson was June 27, 2016). As a result, Sahlin’s
petition would be untimely even if Johnson were applied to his
claim.
In addition, Sahlin’s claim would fail because his
conviction and sentence were not based on the residual clause of
§ 924(c). Sahlin’s crime of violence for purposes of § 924(c)
was bank robbery in violation of § 2113(a). Bank robbery in
violation of § 2113(a) is a crime of violence pursuant to the
elements clause, § 924(c)(3)(A). United States v. Armour, ---
F.3d ---, 2016 WL 6440383, at *3-*4 (7th Cir. Nov. 1, 2016);
United States v. McNeal,
818 F.3d 141, 157 (4th Cir. 2016);
Holder v. United States,
836 F.3d 891, 892 (8th Cir. 2016); In
re Hunt,
835 F.3d 1277 (11th Cir. 2016); Chasse v. United
States,
2016 WL 4926154, at *5 (D.N.H. Sept. 15, 2016). As a
result, the residual clause, § 924(c)(3)(B), did not define the
crime of violence in this case.
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Therefore, because Johnson would not provide the relief
Sahlin seeks, he has not made a substantial showing of the
denial of a constitutional right.
Conclusion
For the foregoing reasons, the government’s motion to
dismiss (document no. 15) is granted.
The court declines to issue a certificate of appealability
because the petitioner has not made a substantial showing of the
denial of a constitutional right as required under § 2553(c)(2).
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
December 1, 2016
cc: Seth R. Aframe, Esq.
Stanley W. Norkunas, Esq.
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