Sahlin v. USA

2016 DNH 216

• Court: District Court, D. New Hampshire
• Decided: December 2, 2016
• Docket: 16-cv-294-JD
• Status: Published

Opinion

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 2

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.

3 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.

4 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.

5 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.