Trubey v. United States of America

Middle District of Florida, flmd-8:2016-cv-01737

ORDER granting {{7}} motion to dismiss; dismissing {{1}} Motion to vacate/set aside/correct sentence (2255). The Clerk is directed to enter judgment for the United States and then to CLOSE the case. Signed by Judge Susan C Bucklew on 10/21/2016. (JD)

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PageID 56 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION STEVEN CHRISTOPHER TRUBEY Petitioner, v. CASE NO. 8:16-cv-1737-T-24TBM 8:11-cr-364-T-24 TBM UNITED STATES OF AMERICA, Respondent. / ORDER Petitioner Steven Christopher Trubey, represented by counsel, filed a Motion to Vacate pursuant to 28 U.S.C. § 2255 on June 23, 2016. The United States filed a motion to dismiss the § 2255 motion as untimely, to which Petitioner filed a response. With the Court's permission, the United States filed a reply to Petitioner's response. Petitioner filed notice of supplemental authority regarding its response in opposition to the United States' motion to dismiss. After due consideration, the Court finds Petitioner's motion should be dismissed as untimely. Petitioner pled guilty to attempted bank robbery in violation of 18 U.S.C. § 2113(a) and (d) and 2 (count one), and carrying and brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and 2 (count PageID 57 two). The Court sentenced Petitioner to a term of imprisonment of 102 months on June 27, 2012. Petitioner did not file a direct appeal. Petitioner now seeks relief under the auspices of § 2255. He claims that because the Armed Career Criminal Act's ("ACCA") residual clause is unconstitutionally vague, a similarly worded statute, 18 U.S.C. § 924(c)(1)(3)(B), is also unconstitutionally vague, and his sentence should be set aside. Petitioner's claim for relief rests on the decision in Johnson v. United States, 135 S.Ct. 2551 (2015), in which the Supreme Court held that the residual cause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague, a decision that was made retroactive on collateral review by the Supreme Court in Welch v. United States, 136 S.Ct. 1257 (2016). Petitioner seeks to extend the holdings in Johnson and Welch to 18 U.S.C. § 924(c) on collateral review. However, Petitioner's motion is untimely in that his conviction has been final for more than one year, and he cannot satisfy the exception to the one year statute of limitations under 28 U.S.C. § 2255(f)(3). Johnson affords Petitioner no collateral relief with regard to his § 924(c) conviction. First, Johnson did not address the statute under which Petitioner was convicted. Instead, Johnson ruled on the constitutionality of the residual clause of the ACCA, § 924(e)(2)(B)(ii). The Supreme Court has never held that any part of § 924(c) is unconstitutionally vague. Nor has the Eleventh Circuit Court of Appeals extended Johnson's vagueness determination to § 924(c). See In re Pinder, 824 F.3d 977, 978 (11th Cir. 2016)("Our Court hasn't decided whether Johnson applies to § 924(c)3)(B)."). -2- PageID 58 ACCORDINGLY, for the reasons expressed, it is ORDERED AND ADJUDGED that: (1) The Government's motion to dismiss Petitioner's § 2255 motion as untimely (CV-Doc. 7) is GRANTED. (2) Petitioner's Motion to Vacate (CV-Doc. 1; CR-Doc. 47) is DISMISSED. (3) The Clerk is directed to enter judgment for the United States in the civil case and then to CLOSE the civil case. DONE AND ORDERED at Tampa, Florida, on October 21, 2016. Copies to: Counsel of Record -3-