UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Phillip Rawnsley

v. Case No. 16-cv-190-SM Opinion No.

United States of America

O R D E R

Petitioner seeks habeas relief under the provisions of

, relying upon the United States Supreme Court's

decision in Johnson v. United States,

(2015),

made retroactive to cases on collateral review by Welch v.

United States,

(2016). Petitioner says

those cases afford him an opportunity to challenge his otherwise

final convictions based upon a newly recognized right, and

triggered a new one-year limitations period from the date on

which the new right was initially recognized. The court

disagrees.

In 2010, Petitioner pled guilty to and was convicted of six

counts of Hobbs Act robbery in violation of

,

and one count of brandishing or using a firearm in connection

with a crime of violence (one of the Hobbs Act robberies), in

1 violation of

(c). He seeks to vacate his

§ 924(c) conviction.

Ordinarily, petitioner's efforts to collaterally challenge

his convictions would be time barred. But, in Johnson the

Supreme Court did indeed initially recognize a new right,

thereby triggering a one-year period during which affected

prisoners might seek habeas relief based upon that newly

recognized right.

(f)(3); Dodd v. United

States,

(2005). Johnson held the residual

clause of the Armed Career Criminal Act (ACCA) invalid under the

Due Process Clause, on grounds that it was unconstitutionally

vague in describing qualifying predicate crimes of violence that

would support enhanced sentencing. Importantly, however,

petitioner was not sentenced under the ACCA. But, says

petitioner, § 924(c) includes a materially indistinguishable

residual clause, so Johnson's new rule applies equally to it.

Consequently, he argues, his petition is timely.

Petitioner's motion for § 2255 relief is premature. As

this court (Barbadoro, J.) explained in Kucinski v. United

States, Civil No. 16-cv-201-PB, (document no. 16), order dated

September 15, 2016, "a substantial number of capable jurists

have reasonably determined after careful analysis that Johnson

2 does not require invalidation of § 924(c)'s residual clause."

(Citations omitted.) Given that circumstance, it is plain that

Johnson does not sufficiently dictate the conclusion that

§ 924(c)'s residual clause is void for vagueness, and so, with

respect to that issue, does not afford petitioner an exception

to the otherwise applicable statute of limitation that bars his

claim. That is, petitioner's motion for relief is too early —

he must await a decision by the Supreme Court invalidating the

residual clause of § 924(c) (and making that holding retroactive

to cases on collateral review) before § 2255(f)(3) will afford

him an opportunity to file a timely petition for habeas relief

on that ground.

Since petitioner's habeas claims necessarily depend upon

Johnson's affording him an opportunity to file a timely

petition, and it does not, the court only addresses that claim.

Conclusion

Johnson announced a new retroactive rule invalidating the

ACCA's residual clause, but that rule does not dictate the

conclusion that § 924(c)'s residual clause is also invalid as

unconstitutionally vague. Consequently, the petition is not

timely under the provisions of

(f)(3), or

otherwise.

3 As in Kucinski, the court concludes that because reasonable

jurists could find debatable whether Johnson v. United States,

(2015), recognized a new right that applies

retroactively to cases on collateral review that extends to

petitioner's conviction under

(c), such that the

petition would be timely under

(f)(3), I grant

petitioner a certificate of appealability with respect to that

issue. See Rule 11, Rules Governing Section 2255 Proceedings.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

October 28, 2016

cc: Bjorn R. Lange, Esq. Seth R. Aframe, AUSA

4