Week Thirty-Four

Week of August 21, 2017 through August 25, 2017

Marlow Humbert v. Dominick Griffin (Gregory 8/22/2017): The Fourth Circuit held that law enforcement officers are not entitled to qualified immunity for a 42 U.S.C. § 1983 claim of malicious prosecution of a criminal defendant when the officers based their claim of probable cause for an arrest on the victim’s emotional reaction to seeing a photo of the defendant after a similar picture was shown to her on the day of her rape. The court reasoned that there was no probable cause to arrest the plaintiff and the law was clearly established. The court reversed the district court’s qualified immunity determination and remanded to the district court with instructions to reinstate the jury’s verdict. Further, the court vacated the district court’s grant of judgment as a matter of law to the Municipal Appellees and remanded for further proceedings. Full Opinion

United States v. Thilo Brown (Duncan 8/21/2017): The Fourth Circuit held the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), finding the Armed Career Criminal Act’s (“ACCA”) residual clause void for vagueness, did not create a new right of appeal for criminal defendants convicted under the residual clause. Here, the court held the petitioner’s 28 U.S.C. § 2255 motion to vacate his sentence was untimely, and therefore he was not entitled to relief. The court affirmed the district court’s dismissal of Petitioner’s motion. Full Opinion


Highlight Case

United States v. Thilo Brown, No. 16-7056

Decided: August 21, 2017

The Fourth Circuit held the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), finding the Armed Career Criminal Act’s (“ACCA”) residual clause void for vagueness, did not create a new right of appeal for criminal defendants convicted under the residual clause. Here, the court held the petitioner’s 28 U.S.C. § 2255 motion to vacate his sentence was untimely, and therefore he was not entitled to relief. The court affirmed the district court’s dismissal of Petitioner’s motion.

On March 19, 2003, Petitioner pleaded guilty to possession with intent to distribute 50 grams or more of crack cocaine, and carrying a firearm during the commission of a drug crime. At sentencing, the district court designated Petitioner a career offender under U.S.S.G. § 4B1.1(a) (2002) because he had a prior felony conviction that qualified as a predicate controlled-substance offense, and his prior Resisting-Arrest Assault Conviction qualified as a predicate crime-of-violence offense. After Petitioner’s conviction became final for purposes of direct review, the Supreme Court decided Johnson. In Johnson, the Court held that ACCA’s residual clause was void for vagueness. After the Johnson decision, Petitioner filed a 28 U.S.C. § 2255 motion to vacate his sentence. Petitioner argued that his prior Resisting-Arrest Assault Conviction could no longer serve as a predicate crime of violence. The Fourth Circuit granted petitioner a certificate of appealability on the issue of whether his prior Resisting-Arrest Assault Conviction qualifies as a predicate offense for career-offender status in light of Johnson.

On appeal, the Fourth Circuit held the Supreme Court’s decision in Johnson, combined with its decisions in Booker and Beckles, did not create a new right entitling Petitioner to relief; therefore, Petitioner’s motion was untimely. Under § 2255(f)(3), a Petitioner can file a § 2255 motion relying on a right newly recognized by the Supreme Court provided that he files within a one-year window running from the date on which the right asserted was initially recognized by the Supreme Court. However, the Fourth Circuit reasoned that Petitioner’s “cited cases do not recognize . . . any right helpful to him[,]” and therefore, the Petitioner’s motion was untimely.

Accordingly, the Fourth Circuit affirmed the district court because only the Supreme Court can recognize the right which would render Petitioner’s motion timely under § 2255(f)(3).

Full Opinion

Jacob D. Taylor

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