United States v. Roy Green

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 17-2906
_____________

UNITED STATES OF AMERICA

v.

ROY ALLEN GREEN,
Appellant
____________

Appeal from the United States District Court
for the Middle District of Pennsylvania
(No. 4-01-cr-00397-001)
District Judge: Hon. Matthew W. Brann

Argued: June 13, 2018
__________

Before: CHAGARES, GREENBERG, and FUENTES,
Circuit Judges.

(Filed: August 6, 2018)
Heidi R. Freese
Federal Public Defender
Frederick W. Ulrich [ARGUED]
Assistant Federal Public Defender
Tammy L. Taylor
Staff Attorney
Office of Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
Counsel for Appellant

John P. Cronan
Matthew S. Miner
John M. Pellettieri [ARGUED]
U.S. Department of Justice
950 Pennsylvania Ave, N.W., Rm. 1260
Washington, D.C. 20530

David J. Freed
Stephen R. Cerutti II
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
250 Federal Building and Courthouse
Harrisburg, PA 17108

George J. Rocktashel
Office of United States Attorney
240 West Third Street, Suite 316
Williamsport, PA 17701
Counsel for Appellee

2
 ____________

OPINION
____________

CHAGARES, Circuit Judge.

Roy Allen Green appeals the District Court’s order
dismissing his 28 U.S.C. § 2255 motion challenging his
sentence arising from his conviction for assault with intent to
commit murder. In setting Green’s sentence, the District Court
determined that he was a career offender under the residual
clause of the then-mandatory Sentencing Guidelines. Green
contends that the residual clause in the career offender
Sentencing Guideline is unconstitutionally vague pursuant to
Johnson v. United States, 135 S. Ct. 2551 (2015), in which the
Supreme Court voided the similar residual clause in the Armed
Career Criminal Act (“ACCA”). The Government, relying
upon the Supreme Court’s recent opinion in Beckles v. United
States, 137 S. Ct. 886 (2017) — holding that vagueness
challenges cannot be brought to the advisory Sentencing
Guidelines — contends that Green’s motion is untimely
because the one-year statute of limitations period to bring a
challenge on collateral review had passed by the time he filed
this motion. We must decide whether Johnson constituted a
newly recognized right, thus providing Green a year from when
Johnson was decided to file his § 2255 motion. We conclude
that it did not, and will therefore affirm the District Court.

3
 I.

In 2001, Green was sentenced to 687 months of
imprisonment for convictions on federal drug and firearms
charges, including a conviction for conspiracy to distribute
methamphetamine. Later that same year, while serving that
sentence, Green attacked another inmate with a shank. Green
then pleaded guilty to one count of assault with intent to
commit murder, in violation of 18 U.S.C. § 113(a)(1). At
sentencing, the District Court determined that Green qualified
as a “career offender” under the residual clause of the then-
mandatory Sentencing Guidelines.1 The Presentence Report
(“PSR”) did not specify which of Green’s prior convictions
qualified as predicate offenses, but cross-referenced sections
of the PSR that listed a federal drug conviction and California
convictions for robbery and assault on a parole agent. Green’s
classification as a career offender resulted in a Guidelines
range of 151 to 188 months of imprisonment. Absent the
career-offender designation, Green’s Guidelines range would
have been 100 to 125 months of imprisonment. Green did not
object to the PSR, and the District Court sentenced him to 151
months of imprisonment, to run consecutively to the 687
months of imprisonment that he was already serving.
Green timely appealed, and we ultimately affirmed his
conviction and sentence. United States v. Green, 117 F. App’x
185, 185 (3d Cir. 2004). Within one year of the Supreme

1
United States Sentencing Guidelines (“U.S.S.G.”)
§ 4B1.2(a) (2001) (“The term ‘crime of violence’ means any
offense under federal or state law, punishable by imprisonment
for a term exceeding one year, that . . . otherwise involves
conduct that presents a serious potential risk of physical injury
to another.”).

4
Court’s decision in Johnson, Green filed a motion to vacate, set
aside, or correct his sentence pursuant to § 2255. Green argued
that in light of Johnson, the residual clause of the mandatory
Sentencing Guidelines is unconstitutionally vague. The
District Court stayed the motion until the Supreme Court
decided Beckles. After Beckles was decided, the District Court
dismissed Green’s motion as untimely under 28 U.S.C.
§ 2255(f), holding that Green did not assert a right that was
newly recognized by the Supreme Court. The District Court
granted a certificate of appealability “on the issue of whether
United States v. Johnson, 135 S. Ct. 2551 (2015), ‘newly
recognize[s]’ a right for petitioner under 28 U.S.C. §
2255(f)(3).” Appendix (“App.”) 10. This timely appeal
followed.

II.

The District Court had jurisdiction pursuant to 28
U.S.C. § 2255. We have jurisdiction pursuant to 28 U.S.C. §
2253(a) & (c). On appeal of an order denying a § 2255 motion,
we review a district court’s legal conclusions de novo and
factual findings for clear error. United States v. Travillion, 759
F.3d 281, 289 (3d Cir. 2014).

III.

Green argues that the Supreme Court’s opinion in Johnson,
holding the residual clause of the ACCA unconstitutionally
vague, also applies to cases involving the residual clause in the
mandatory Sentencing Guidelines. The Government argues
that due to the Supreme Court’s recent opinion in Beckles,
which held that the residual clause in the advisory Sentencing
Guidelines could not be subject to a void-for-vagueness

5
challenge pursuant to Johnson, we need not reach the merits of
Green’s motion because Green’s challenge is untimely. The
Government contends that the statute of limitations began
running when Green’s conviction became final in 2005, and
thus the one-year statute of limitations period to bring a
challenge on collateral review had long since passed by the
time he filed this motion. Green responds that his motion is
timely because it was filed within one year of Johnson, which
restarted his limitations period by recognizing a new rule of
constitutional law that applies to Green.

A motion filed under 28 U.S.C. § 2255 is subject to a
one-year limitations period that runs from:

(1) the date on which the judgment of conviction
becomes final;
(2) the date on which the impediment to making
a motion created by governmental action in
violation of the Constitution or laws of the
United States is removed, if the movant was
prevented from making a motion by such
governmental action;
(3) 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; or
(4) the date on which the facts supporting the
claim or claims presented could have been
discovered through the exercise of due diligence.

28 U.S.C. § 2255(f). Accordingly, a petitioner seeking
collateral review under § 2255 will have one year from the date

6
on which his judgment of conviction is final to file his petition.
Id. § 2255(f)(1); see also Dodd v. United States, 545 U.S. 353,
357 (2005). The statute also provides for three limited,
alternative circumstances in which the one-year limitations
period will begin to run. Here, Green contends that §
2255(f)(3) applies, and that Johnson restarted his statute of
limitations period by newly recognizing the right on which his
petition relies. In Dodd, the Supreme Court held that the
limitations period restarts on the date of the Supreme Court
decision initially recognizing the right, and not the date of the
decision that thereafter makes the right retroactively applicable
to cases on collateral review. See 545 U.S. at 357 (“An
applicant has one year from the date on which the right he
asserts was initially recognized by this Court.”).

We must begin with the text of 28 U.S.C. § 2255(f)(3) to
address Green’s timeliness argument. See Rotkiske v. Klemm,
890 F.3d 422, 425 (3d Cir. 2018) (en banc). Plainly, if the
“right” that Green “assert[s]” has been “recognized” by the
Supreme Court within one year of the date Green filed his
motion, then his motion is timely. We must determine whether
the Supreme Court has recognized the right asserted by Green.

As the Supreme Court has observed, “[a] common . . .
definition of the word ‘recognize’ is ‘to acknowledge or treat
as valid.’” Tapia v. United States, 564 U.S. 319, 327 (2011)
(quoting Random House Dictionary of the English Language
1611 (2d ed. 1987)). Thus, the Supreme Court must have
formally acknowledged or treated as valid the right asserted by
Green for it to be “recognized” within the meaning of
§ 2255(f)(3). This recognition of a right must also be definite.
See United States v. Brown, 868 F.3d 297, 301 (4th Cir. 2017)
(“To ‘recognize’ something is (1) ‘to acknowledge [it]

7
formally’ or (2) ‘to acknowledge or take notice of [it] in some
definite way.’” (quoting Recognize, Merriam-Webster Tenth
Collegiate Dictionary 976 (1996))).

Green contends that the right underlying his claim was
initially recognized when Johnson was decided, and maintains
that the statute of limitations period began to run anew from that
point. The Government argues that Green’s motion, filed
within one year of Johnson but more than one year after his
conviction became final, is untimely because the limitations
period in § 2255(f)(3) does not apply, as the Supreme Court
has neither recognized nor made retroactively available the
right on which Green relies.

To determine whether Green can rely on Johnson to
challenge his sentence, we next turn to the Supreme Court’s
decisions on the ACCA’s residual clause and the Sentencing
Guidelines. In Johnson, the Supreme Court considered a due
process challenge to the residual clause of the ACCA, 18
U.S.C. § 924(e)(2)(B)(ii). The ACCA applies to a defendant
convicted of being a felon in possession of a firearm under 18
U.S.C. § 922(g). See 18 U.S.C. § 924(a)(2). Ordinarily, the
punishment for a violation of this prohibition is a maximum of
10 years of imprisonment. See id. However, if a defendant is
an armed career criminal, the ACCA imposes a mandatory
minimum sentence of 15 years and a statutory maximum
sentence of life. Id. § 924(e)(1). A defendant qualifies as an
armed career criminal if, in relevant part, he has three or more
previous convictions for a “violent felony” or a “serious drug
offense.” Id. Before Johnson, the definition of “violent
felony” had three operative clauses: one enumerating offenses,
one enumerating elements, and the residual clause. Id. §
924(e)(2)(B). The residual clause defined a crime as a “violent

8
felony” if it “otherwise involves conduct that presents a serious
potential risk of physical injury to another.” Id.
§ 924(e)(2)(B)(ii).

The Supreme Court in Johnson held that the ACCA
residual clause was unconstitutionally vague. 135 S. Ct. at
2563. The Court explained that the Fifth Amendment’s
vagueness doctrine bars the Government from “taking away
someone’s life, liberty, or property under a criminal law so
vague that it fails to give ordinary people fair notice of the
conduct it punishes, or so standardless that it invites arbitrary
enforcement.” Id. at 2556. These principles apply to laws
“defining elements of crimes” or “fixing sentences.” Id. at
2557. The ACCA was a law “fixing sentences.” Beckles, 137
S. Ct. at 892. The Court in Johnson held that “[i]ncreasing a
defendant’s sentence under the [residual] clause denies due
process of law.” 135 S. Ct. at 2557. In Welch v. United States,
the Supreme Court resolved the issue of Johnson’s
retroactivity, holding that it is retroactive to cases on collateral
review. 136 S. Ct. 1257, 1264 (2016).

In Beckles, the Supreme Court considered a challenge
relying upon Johnson to the residual clause in the career
offender Guideline. 137 S. Ct. at 890. The career offender
Guideline applies where “the instant offense of conviction is a
felony that is either a crime of violence or a controlled substance
offense” and “the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance
offense.” U.S.S.G. § 4B1.1 (2011). Until recently, the career
offender Guideline defined a “crime of violence” as

9
 any offense under federal or state law,
punishable by imprisonment for a term
exceeding one year that—
(1) has as an element the use, attempted use, or
threatened use of physical force against the
person of another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.

Beckles, 137 S. Ct. at 890-91 (quoting U.S.S.G. § 4B1.2(a)
(2008) (emphasis added)).

The residual clause of the career offender Guideline (the
emphasized language immediately above) became effective
November 1, 1989. See U.S.S.G. App. C, Amend. 268 (1989).
It has spanned two eras in sentencing under the Sentencing
Guidelines: before and after the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005). Before Booker,
the Sentencing Guidelines had “the force and effect of laws”
and were “mandatory and binding on all judges.” Id. at 233-
34. District courts were required to “impose a sentence of the
kind, and within the range,” set by the Guidelines. Id. at 234
(quoting 18 U.S.C. § 3553(b)). In Booker, however, the
Supreme Court held that the Sentencing Guidelines violated
the Sixth Amendment. Id. at 226–27. The Court then rendered
the Guidelines “advisory.” Id. at 245. Now, after Booker, a
court must “consider Guidelines ranges” but may “tailor the
sentence in light of other statutory concerns as well.” Id. at
245 (citing 18 U.S.C. § 3553(a)). The resulting sentence may
vary from the Guidelines range. United States v. Gunter, 462
F.3d 237, 247 (3d Cir. 2006).

10
 The Supreme Court in Beckles rejected a challenge,
based upon Johnson, to the residual clause in the advisory
Guidelines. Beckles, 137 S. Ct. at 890. The Court held that “the
advisory Guidelines are not subject to vagueness challenges.” Id.
Because the advisory Guidelines do not “fix the permissible
sentences for criminal offenses,” the Court determined that the
advisory Guidelines cannot be challenged as constitutionally
vague. Id. at 892 (emphasis omitted). Rather, the advisory
Guidelines “merely guide the exercise of a court’s discretion.”
Id. The Court explained that the two principles governing the
vagueness doctrine — notice and avoiding arbitrary
enforcement — do not apply to the advisory Guidelines. Id. at
894.

The Court in Beckles limited its holding to the advisory
guidelines. Id. at 890. It did not address the mandatory
Sentencing Guidelines. Indeed, in a concurring opinion in
Beckles, Justice Sotomayor noted that the majority left “open
the question whether defendants sentenced to terms of
imprisonment before [the Supreme Court’s] decision in United
States v. Booker—that is, during the period in which the
Guidelines did ‘fix the permissible range of sentences,’—may
mount vagueness attacks on their sentences.” Id. at 903 n.4
(Sotomayor, J., concurring) (citations omitted).

Green contends that the Court in Johnson recognized a
right to not have a sentence determined by a vague residual
clause in a law that fixes sentences because that “denies fair
notice to defendants and invites arbitrary enforcement by
judges.” Johnson, 135 S. Ct. at 2557. He claims that he is
asserting that same right here. He contends that this right is a
natural application of the reasoning of the Court’s decisions in

11
Johnson, Booker, and Beckles, because the residual clause in
the Sentencing Guidelines contains the same language as —
and was derived from the residual clause in — the ACCA.
Compare U.S.S.G. § 4B1.2(a)(1) (2001), with 18 U.S.C. §
924(e)(2)(B)(ii). Accordingly, he argues, the mandatory
Sentencing Guidelines and the ACCA have an equivalent effect on
a district court’s sentencing discretion. Green maintains that the
mandatory Guidelines raise the same constitutional infirmities
as did the ACCA, as articulated in Johnson, and implicate an
equivalent right to be free of the same unconstitutionally vague
language. Further, he argues that the Supreme Court has made
clear that this right in Johnson applies to the mandatory
Guidelines because the Court in Booker recognized a
constitutional distinction between the mandatory Guidelines
and the advisory Guidelines, Booker, 543 U.S. at 245, and then
limited its holding in Beckles to the advisory Guidelines, Beckles,
137 S. Ct. at 895.

The Government counters that Green takes an overly
broad reading of the “right” that was recognized in Johnson. It
contends that the Supreme Court has never recognized a due
process right to bring a vagueness challenge to the mandatory
Sentencing Guidelines. To the contrary, it argues that the
Court in Beckles held that the advisory Guidelines cannot be
challenged on vagueness grounds, and in so doing, expressly
“le[ft] open” and “t[ook] no position on” the question of
whether the mandatory Guidelines could be challenged on
vagueness grounds. Beckles, 137 S. Ct. at 903 n.4 (Sotomayor,
J., concurring). The Government contends that if a question
has been expressly left open by the Supreme Court, by
definition it has not been “recognized by the Supreme Court.”
28 U.S.C. § 2255(f)(3). We agree.

12
 If Johnson had provided the last word on this issue, we
might be persuaded by Green’s arguments; however, we are also
bound by the Court’s ruling in Beckles. Before Beckles was
decided, we, along with the majority of the Courts of Appeals to
consider the question, concluded that the holding in Johnson
dictated that the residual clause in the now-advisory Sentencing
Guidelines was also void for vagueness.2 But in Beckles, the
Supreme Court did not apply Johnson to the advisory
Sentencing Guidelines. Instead, it cabined the reach of Johnson,
making clear that despite identical language between the
residual clauses of the ACCA and the Sentencing Guidelines,
whether the mandatory Sentencing Guidelines are amenable to
a vagueness challenge remains a separate and open question.

Accordingly, in light of Beckles, Johnson’s holding as
to the residual clause in the ACCA created a right only as to
the ACCA, and not a broader right that applied to all similarly
worded residual clauses, such as that found in the advisory
Sentencing Guidelines. The Supreme Court in Johnson
recognized a right to not be sentenced under a statute that
“fixed—in an impermissibly vague way—a higher range of
sentences for certain defendants.” Beckles, 137 S. Ct. at 892.

2
See United States v. Hurlburt, 835 F.3d 715, 725 (7th
Cir. 2016) (en banc) (applying Johnson to the Sentencing
Guidelines); United States v. Sheffield, 832 F.3d 296, 312-13
(D.C. Cir. 2016) (same); United States v. Calabretta, 831 F.3d
128, 133-34 (3d Cir. 2016) (same); United States v. Madrid,
805 F.3d 1204, 1210-11 (10th Cir. 2015) (same); United States
v. Pawlak, 822 F.3d 902, 911 (6th Cir. 2016) (same). But see
United States v. Matchett, 802 F.3d 1185, 1193-96 (11th Cir.
2015) (holding that Johnson did not apply to the Sentencing
Guidelines).

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It says nothing about a parallel right to not be sentenced under
Sentencing Guidelines, whether advisory or mandatory.
Thus, we agree with the Government that Johnson did not
recognize a right to bring a vagueness challenge to the
mandatory Sentencing Guidelines. As the Court in Beckles
clarified, that remains an open question. By its very nature, the
Supreme Court has not acknowledged any answer to an open
question, let alone a definite one. Since the Supreme Court has
not determined whether the mandatory Sentencing Guidelines
are even subject to vagueness challenges in the first instance, it
certainly has not “recognized” the right to bring a successful
vagueness challenge to the mandatory Guidelines’ residual
clause. And because no Supreme Court case has recognized the
right that Green asserts, he cannot rely on 28 U.S.C. §
2255(f)(3) to restart his applicable statute of limitations period.
Our decision is in line with those of many of our sister circuits.
Faced with the same question, the Courts of Appeals for the
Fourth, Sixth, and Tenth Circuits have also concluded that the
Supreme Court has not “recognized” a right to bring a
vagueness challenge to the mandatory Sentencing Guidelines.
See United States v. Greer, 881 F.3d 1241, 1247 (10th Cir.
2018) (“The right that Mr. Greer ‘asserts’ is a right not to be
sentenced under the residual clause of § 4B1.2(a)(2) of the
mandatory Guidelines. The Supreme Court has recognized no
such right. And nothing in Johnson speaks to the issue.”);
Brown, 868 F.3d at 299 n.1 (“If a question is expressly left
open, then the right, by definition, has not been recognized.”);
Raybon v. United States, 867 F.3d 625, 630 (6th Cir. 2017)
(holding that “[b]ecause it is an open question, it is not a ‘right’
that ‘has been newly recognized by the Supreme Court’ let

14
alone one that was ‘made retroactively applicable to cases on
collateral review.’” (quoting 28 U.S.C. § 2255(f)(3))).3
The Court of Appeals for the Seventh Circuit, however, has
recently come to the opposite conclusion, holding that a
petitioner can rely on 28 U.S.C. § 2255(f)(3) and timely file a
petition challenging a sentence under the residual clause of the
mandatory Sentencing Guidelines within one year of Johnson.
See Cross v. United States, 892 F.3d 288, 293-94 (7th Cir.
2018). We are not persuaded by the court’s brief analysis on
this issue, which effectively reads “recognized” out of 28
U.S.C. § 2255(f)(3) by not engaging in an inquiry into whether
the right asserted by the petitioner is the same right that was
recognized by the Supreme Court, and does not even
acknowledge the fact that the Supreme Court in Beckles noted
that this precise question remains open with respect to the
mandatory Sentencing Guidelines.

We also note that our decision in In re Hoffner, 870 F.3d
301 (3d Cir. 2017), does not compel a different result. In
Hoffner, we considered only whether a petitioner had made a

3
The Court of Appeals for the First Circuit has
expressed doubts about the decisions reached by the Courts of
Appeals for the Fourth and Sixth Circuits. See Moore v.
United States, 871 F.3d 72, 82-83 (1st Cir. 2017). However,
Moore concerned the different question of whether a petitioner
was permitted to file a successive habeas petition in light of
Johnson. The timeliness question was not before the court.
The court left the timeliness question, along with any
determination on the merits, for the district court to decide in
its consideration of the successive petition in the first instance,
see id. at 84, and does not appear to have directly addressed
those questions since.

15
“prima facie showing,” pursuant to 28 U.S.C. § 2244(b)(3)(C),
that his claim relied on Johnson such that he was entitled to file
a successive petition. Id. at 302-03. In determining that the
petitioner had done so, we applied a “permissive and flexible”
standard, and expressly noted that it is for the district court to
decide in the first instance whether the claim had merit or
whether the petitioner’s reliance on Johnson “is misplaced.” Id.
at 308-09 (quoting In re Arnick, 826 F.3d 787, 791 (5th Cir.
2016) (Elrod, J., dissenting)). Here, by contrast, before
reaching the merits of Green’s requested relief, we must
consider the question we left to the district court in Hoffner,
that is, whether Green can rely on Johnson as a rule “recognized
by the Supreme Court.” 28 U.S.C. § 2255(f)(3). Thus, because
we were concerned there only with whether the petitioner had
satisfied this prima facie standard, Hoffner does not control our
holding here.4

We hold that Green’s motion is untimely in light of the
plain language of 28 U.S.C. § 2255(f)(3) and the Supreme
Court’s indication in Beckles that it remains an open question
whether the mandatory Sentencing Guidelines can be subject
to vagueness challenges. In so holding, we do not speak to the
merits of Green’s claim, and do not decide whether the residual
clause in the mandatory Sentencing Guidelines is
unconstitutionally vague. Only the Supreme Court can

4
The Court of Appeals for the Fourth Circuit has
reached the same conclusion with respect to its own analogous
precedent allowing the filing of a successive petition pursuant
to § 2255(h)(2). See Brown, 868 F.3d at 304.

16
recognize the right that would render Green’s motion timely
under § 2255(f)(3).5

IV.

For the foregoing reasons, we will affirm the judgment
of the District Court.

5
We note that if the Supreme Court does recognize such
a right, Green would then have one year from that date to bring
a subsequent petition relying on that decision.

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