SHEPPARD v. UNITED STATES (2024)

FINAL ORDER OF DISMISSAL

This matter comes before the court on Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“§ 2255 Motion”), filed pro se on July 14, 2023, ECF No. 762, and the United States’ Motion to Dismiss Petitioner's Motion to Vacate, Set Aside, or Correct Sentence (“Motion to Dismiss”), filed on August 16, 2023, ECF No. 766. For the reasons explained below, the United States’ Motion to Dismiss is GRANTED and Petitioner's § 2255 Motion is DISMISSED.

I. BACKGROUND

On March 8, 2011, the United States filed a thirty-five count Third Superseding Indictment against Petitioner and seven codefendants. ECF No. 284 (“Third Superseding Indictment”). The Third Superseding Indictment contained eleven counts against Petitioner, charging him on Counts 1 and 27-36. Id. at 1. On January 3, 2012, Petitioner entered into a written plea agreement, by which he agreed to plead guilty to three counts: Count 28, Robbery Affecting Interstate Commerce, in violation of 18 U.S.C. §§ 1951(a) and 2; Count 30, Discharge Use, Carry and Possess a Firearm, in violation of 18 U.S.C. §§ 924(c) and 2; and Count 34, Murder with a Firearm in Relation to a Crime of Violence, in violation of 18 U.S.C. §§ 924(j) and 2. ECF No. 484 at 1-2 (“Plea Agreement”). Petitioner admitted the facts set forth in an accompanying statement of facts establishing his guilt of the offenses charged beyond a reasonable doubt. See ECF No. 485. Pursuant to the Plea Agreement, the United States dismissed the remaining eight counts against Petitioner. See ECF Nos. 484, 539.

Petitioner's three counts of conviction stemmed from two drug-related homicides. First, on January 18, 2007, Petitioner and two codefendants, Andra Green and Bobby Kahill Mangrum, planned and attempted a robbery of John Henry Green, who was unrelated to Andra Green. See ECF No. 485 at 1-2. This robbery was unsuccessful. Petitioner drove a van to a gas station in Newport News, while Andra Green and Mangrum rode in the back. Id. at 1. The group spotted the victim at the gas station and feigned interest in buying drugs from him to lure him into the van. Id. Once the victim entered the van, Andra Green and Mangrum held him at gunpoint. Id. Petitioner drove away from the gas station while Andra Green and Mangrum unsuccessfully searched the victim for valuables. Id. at 2. Finding nothing, Petitioner stopped the van on a highway offramp. Id. Andra Green then forced the victim out of the van and shot him in the back of the head with a shotgun at close range. Id. Andra Green, Mangrum, and Petitioner fled the scene in the van, leaving John Henry Green to die on the highway offramp. Id.

The second homicide occurred on March 20, 2009. Petitioner and three codefendants,¹ Andra Green, Zakarie Williams, and Raymond Brown, planned and attempted a robbery of Demareo Dontae Hardy. Id. at 3-4. This time, the robbery was successful. While driving around Newport News, the group saw Hardy walking on a sidewalk, stopped their car, beat and stomped on him, and stole his clothes. Id. Petitioner then shot Hardy at least five times with a handgun and left him to die naked on the street. Id. at 4. After the group fled the scene, Andra Green went through Hardy's clothes and found 20-30 dime bags of marijuana. Id. Green also kept Hardy's shirt, belt, and iPod. Id.

Counts 28 and 30 were based on the attempted robbery and homicide of John Henry Green. Count 28 charged Petitioner and codefendants with interfering with commerce, in violation of 18 U.S.C. § 1951(a) and 2, because Petitioner and his codefendants attempted to rob John Henry Green by means of actual and threatened force. ECF No. 284 at 28. Count 30 charged Petitioner and his codefendants with brandishing a firearm during and in relation to, and in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c) and 2. Id. at 29-30. The two predicate crimes of violence underlying Count 30 were the attempted robbery of John Henry Green alleged in Count 28, and a separate conspiracy charge alleged in Count 27. Id. at 30.

Count 34 was based on the completed robbery and murder of Demareo Dontae Hardy. Count 34 charged Petitioner and codefendants with the carry and use of firearm during and in relation to a crime of violence, which resulted in the murder of Hardy, in violation of 18 U.S.C. § 942(j) and 2. Id. at 36-37. The two predicate crimes of violence underlying Count 34 were an armed robbery charge alleged in Count 33 and a conspiracy charge alleged in Count 32.

On January 3, 2012, United States Magistrate Judge Tommy Miller conducted a hearing pursuant to Federal Rule of Criminal Procedure 11 and accepted Petitioner's guilty plea. ECF No. 487. On April 5, 2012, the court sentenced Petitioner to terms of imprisonment of 240 months on Count 28, 120 months on Count 30, and life on Count 34. ECF No. 540 at 2. The 240-month term on Count 28 was to be served concurrently with the life term on Count 34, while the 120-month term on Count 30 was to be served consecutively, for a total term of imprisonment of life plus 120 months. Id. Petitioner did not file a direct appeal of his sentence.

The instant § 2255 Motion was filed on July 14, 2023. ECF No. 762. The United States responded on August 16, 2023, by filing the Motion to Dismiss based on the lack of timeliness of the § 2255 Motion. ECF No. 766. Petitioner was permitted to file a reply brief within thirty days of the United States’ Motion to Dismiss, see ECF No. 765 at 2, but Petitioner did not file a reply. On February 23, 2024, the court entered a Show Cause Order finding that the § 2255 Motion appeared to be untimely and warning Petitioner that the motion would be “dismissed as untimely, unless he [could] otherwise demonstrate that it was filed within the proper time period under 28 U.S.C. § 2255[.]” ECF No. 775. The court granted Petitioner's letter motion to extend time to file a response, see ECF No. 779, and Petitioner filed his response to the Show Cause Order on April 16, 2024, ECF No. 780 (“Response”).

Having reviewed the relevant filings, the Court finds that a hearing is not necessary to address Petitioner's § 2255 Motion because the filings conclusively show that Petitioner is not entitled to relief. See 28 U.S.C. § 2255(b) (A court shall grant a prompt hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”). Therefore, this matter is now ripe for judicial determination.

II. DISCUSSION

A. The § 2255 Motion

In his § 2255 Motion, Petitioner claims four potential grounds for relief. As the § 2255 Motion was filed pro se, the court liberally construes Petitioner's asserted grounds for relief so as to do substantial justice. See Elijah v. Dunbar, 66 F.4th 454, 460 (4th Cir. 2023) (citing Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) and Fed. R. Civ. P. 8(f)); see also Canty v. City of Richmond Police Dep't, 383 F. Supp. 1396, 1400 (E.D. Va. 1974) (“In the great run of pro se cases, the issues are faintly articulated and often only dimly perceived.”) aff'd sub nom. Canty v. Brown, 526 F.2d 587 (4th Cir. 1975). Accordingly, the court must determine whether the § 2255 Motion contains any cognizable ground for relief. See id.; see also Rice v. Nat'l Sec. Council, 244 F. Supp. 2d 594, 596 (D.S.C. 2001) (“The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented.”), aff'd sub nom. Rice v. Mills, 46 F. App'x 212 (4th Cir. 2002).

In Ground One, Petitioner claims that his sentence is invalid because this court did not have subject matter jurisdiction over the place the crime occurred. ECF No. 762 at 4. Here, Petitioner essentially argues that, where a criminal statute relies on interstate commerce to establish federal jurisdiction, federal district courts only retain criminal jurisdiction if the alleged crime occurred on federal land. Id. Thus, Petitioner argues, this court lacked jurisdiction over his case because the crimes occurred in the Commonwealth of Virginia and not on federal land. Id.

Ground Two challenges the predicate crimes of violence underlying Petitioner's convictions. Id. at 5. Here, Petitioner specifically states that “[c]onspiracy and [a]ttempted Hobbs Act [robbery] are [u]nconstitutional and Count 29 is now infirm as to my 924(j) [m]urder [c]onviction.” Id. Petitioner explains that,

Count 29 identified two underlying crimes of violence: Conspiracy to commit Hobbs Act Robbery[ ] and Attempted Hobbs Act Robbery. Because [ ] the 4th Circuit Court of Appeals and Supreme Court have subsequently recognized that neither qualifies as a crime of violence under § 924(c)’s elements clause, Count 29 conviction is infirm and should be vacated.

Id. In support of this argument, Petitioner cites the Fourth Circuit's recent opinion in the appeal of his codefendant, Andra Green. Id. (citing United States v. Green, 67 F.4th 657 (4th Cir. 2023)).

As presented, Ground Two does not seem to be applicable to Petitioner's case. The United States correctly notes that Petitioner did not plead guilty to Count 29 and the United States later dropped this charge against him. ECF No. 766 at 2 n.2. However, in liberally construing the pro se motion, the court finds a potential cognizable claim here. Count 29 was a charge for the murder of John Henry Green, where the predicate crimes of violence were the conspiracy charge alleged in Count 27 and the attempted Hobbs Act robbery charge alleged in Count 28. In United States v. Andra Green, the Fourth Circuit specifically recognized the conspiracy and attempted robbery of John Henry Green could not serve as predicate crimes of violence to support a conviction on Count 29. Green, 67 F.4th at 662. It follows that Petitioner could have a potentially viable claim to challenge his conviction on Count 30, which was based on the same predicate crimes.

Further, Petitioner appears to contend that the Fourth Circuit's Green opinion calls into question his murder conviction on Count 34. To be sure, Petitioner's characterization of the claim, that “Count 29 is now infirm as to [his] 924(j) [m]urder [c]onviction,” ECF No. 762 at 6, is “inartfully pleaded,” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). The liberal construction the court will give a pro se motion is not limitless, and courts are not required to “conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). Nevertheless, the court can reasonably read Ground Two to make a cognizable challenge to Petitioner's Count 34 murder conviction here. Petitioner's reference to his murder conviction and the statute under which he was convicted suggests to the court that Petitioner intends to challenge the continued constitutional validity of the predicate crimes underlying his Count 34 murder conviction. Although the merits of challenging the continuing validity of the predicate crimes of Count 34 are dubious,² the court finds that Ground Two presents cognizable challenges to Petitioner's convictions on both Count 30 and Count 34.

Grounds Three and Four challenge Petitioner's murder conviction on Count 34. ECF No. 762 at 7. In Ground Three, Petitioner argues that his conviction under § 924(j) is infirm because “murder” is not defined in the elements clause of 18 U.S.C. § 924(c)(3)(A), but instead is defined in a different section of the statute, 18 U.S.C. § 1111. A conviction under § 924(j) requires that a criminal defendant first be found guilty of committing a “crime of violence” as defined in § 924(c). The “elements clause” in § 924(c)(3)(A) defines a “crime of violence” as “an offense that is a felony and ․ has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Petitioner essentially argues that, because the elements clause of § 924(c) does not contain a definition of “murder” or specify the elements of murder contained in § 1111, his conviction under § 924(j) is infirm. ECF No. 762 at 7.

In Ground Four, Petitioner alleges that the government breached his plea agreement by using dismissed counts to serve as predicate crimes for his conviction on Count 34. Id. at 8. Petitioner's conviction on Count 34 was based on the conspiracy and robbery charges in violation of 18 U.S.C. § 1951 alleged in Counts 32 and 33, respectively. Petitioner argues that the United States promised to dismiss these charges as a term of the Plea Agreement, and thus, committed a breach of contract by using Counts 32 and 33 as predicate crimes of violence to support his conviction on Count 34. Id.

The United States’ Motion to Dismiss does not challenge the merits of Petitioner's grounds for relief, but instead argues that the § 2255 Motion should be dismissed because it is untimely.³ ECF No. 766 at 2-5. The United States argues that Petitioner's claims fall outside the timeline for filing habeas corpus petitions established by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), as codified in 28 U.S.C. § 2225(f). Id. Further, the United Sates argues that Petitioner is not entitled to equitable tolling of this limitations period. Id. at 5.

In his Response, Petitioner argues that his § 2255 Motion is timely under § 2255(f)(3). ECF No. 780 at 3. Petitioner appears to argue that the Supreme Court decisions in Johnson v. United States, 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015); United States v. Davis, 588 U.S. 445, 139 S.Ct. 2319, 204 L.Ed.2d 757 (2019); and United States v. Taylor, 596 U.S. 845, 142 S.Ct. 2015, 213 L.Ed.2d 349 (2022); and the Fourth Circuit's decision in codefendant Andra Green's case, United States v. Green, 67 F.4th 657 (4th Cir. 2023), extended his time to file the § 2255 Motion. Id. at 3-4. Additionally, Petitioner makes an ineffective assistance of counsel claim against his former trial counsel for the first time in his Response. Id. at 3.

B. Legal Standard

A prisoner may challenge a sentence imposed by a federal court, if (1) the sentence violates the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum; or (4) the sentence “is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). A sentence is “otherwise subject to collateral attack,” if a petitioner shows that the proceedings suffered from “a fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)). A petitioner bears the burden of proving one of those grounds by a preponderance of the evidence. See Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). If he satisfies that burden, the court may vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(b). However, if the motion, when viewed against the record, shows that the petitioner is entitled to no relief, the court may summarily dismiss the motion. Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

Before the court reaches the merits of the motion, it must satisfy the statutory timeliness requirements of 28 U.S.C. § 2255(f). That section provides a one-year limitation period for filing a § 2255 motion, which runs from the latest of:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by the 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 could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f). For most cases, the operative date from which the limitation period begins is measured by the date on which the judgment becomes final, unless one of subparagraphs (2)-(4) applies to allow for belated filing. See Dodd v. United States, 545 U.S. 353, 357, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005). If the petition is filed later than allowable timeline in § 2255(f), “it must be dismissed as untimely.” United States v. Gadsen, 332 F.3d 224, 226 (4th Cir. 2003); see 28 U.S.C. § 2255(f).

C. Timeliness

Petitioner's § 2255 Motion is procedurally time-barred because it was filed more than one year after his judgment of conviction became final and none of subparagraphs (2)-(4) are applicable. “A criminal conviction becomes final at the end of the appellate process—i.e., when the time for a direct appeal expires and the defendant has not noticed an appeal or, if the defendant pursues an appeal, when the time for filing a petition for certiorari expires.” United States v. Oliver, 878 F.3d 120, 125 (4th Cir. 2017). The time for filing an appeal is governed by Federal Rule of Appellate Procedure 4(b), which requires defendants to file their notice of appeal within fourteen days after the entry of the judgment. See id. at 123.

The court entered judgment against Petitioner on April 5, 2012. ECF No. 540. Petitioner did not file a direct appeal of the judgment, so his conviction became final fourteen days later, on April 19, 2012. Accordingly, the one-year limitation period provided in § 2255(f)(1) for Petitioner to file the § 2255 Motion expired on April 19, 2013. Petitioner filed the § 2255 Motion on July 14, 2023, over ten years after the limitation period expired. The § 2255 Motion is thus procedurally time-barred unless one of subparagraphs (2)-(4) applies to his case.

Of these subparagraphs, only subparagraph (3) is potentially applicable to Petitioner's § 2255 Motion. Subparagraph (2) does not apply, as Petitioner has not identified any governmental action that prevented him from filing the § 2255 Motion. Petitioner's only potential cognizable argument for timeliness is that Ground Two is timely under subparagraph (3), contending that the rights newly recognized by the Supreme Court in Johnson, Davis, and Taylor, and by the Fourth Circuit in Green, are applicable to his case. ECF No. 780 at 3-4. Subparagraph (4) does not apply, as Petitioner has not pointed to any new facts supporting his claims.⁴ Aside from Ground Two, Petitioner has provided no cognizable justification that could excuse the late filing of Grounds One, Three, or Four, or his ineffective assistance of counsel claim asserted for the first time in his Response.⁵

However, while Petitioner has made a potentially cognizable claim for timeliness under subparagraph (3), the Fourth Circuit's decision in Green does not affect the timeliness of Petitioner's § 2255 Motion. Codefendant Andra Green argued that he was entitled to relief under the holding of Johnson, and he filed his habeas petition within a year of the Supreme Court's decision in that case. See Motion to Vacate Under 28 U.S.C. 2255 at 4, Green v. United States, 4:09cr81-7 (E.D. Va. April 11, 2016), ECF No. 644. The court denied Green's petition because Johnson applied to convictions under 18 U.S.C. § 924(e), not to Green's conviction under 18 U.S.C. § 924(c). Dismissal Order at 2-3, Green v. United States, 4:09cr81-7 (E.D. Va. June 7, 2016), ECF No. 653. Green appealed the court's decision, and while Green's appeal was pending, the Supreme Court decided Davis, which recognized that the residual clause of § 924(c) was unconstitutionally vague. 588 U.S. at 448, 139 S.Ct. 2319. In considering these unique procedural circumstances, the Fourth Circuit held that Green's petition was timely under § 2255(f)(3) because it was filed within a year of Johnson, which recognized a closely analogous right to the one that Green asserted. Green, 67 F.4th at 664.

In contrast, Petitioner did not file a petition within a year of either Johnson or Davis. Instead, Petitioner waited to file until after the Fourth Circuit's decision in Green's case. The Fourth Circuit's decision in Green determined that Davis was applicable to Green's case, which was pending on appeal when Davis was decided by the Supreme Court. The Fourth Circuit's narrow holding applies only to Green and does not affect the limitation period for Petitioner to file his claim.⁶ Only the Supreme Court decision that recognizes the right affects the limitation period, and a Court of Appeals ruling applying the right does not extend the filing deadline. See Dodd, 545 U.S. at 357, 125 S.Ct. 2478; United States v. Brown, 868 F.3d 297, 301 (4th Cir. 2017) (emphasis omitted) (“[O]nly the Supreme Court can recognize a new right under § 2255(f)(3).”). Unlike codefendant Green, Petitioner did not file his § 2255 Motion within one year of the date on which the Supreme Court initially recognized the right supporting his claim, filing his § 2255 Motion over eight years after Johnson, over four years after Davis, and over one year Taylor.⁷ Ground Two is therefore untimely under § 2255(f)(3).

D. Equitable Tolling

Petitioner is not entitled to equitable tolling of the statute of limitations. “Equitable tolling of petitions for collateral review is available only when a defendant demonstrates ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.’ ” Whiteside, 775 F.3d at 184 (quoting Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010)). Equitable tolling is reserved for “those rare instances where—due to circumstances external to the party's own conduct—it would be unconscionable to enforce the limitation period against the party and gross injustice would result.” Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000).

Petitioner appears to suggest that the court should equitably toll the statutory limitations period because, he argues, it would be a miscarriage of justice to allow him to continue serving his sentence since it is based on conduct that the law no longer criminalizes. See ECF 762 at 12. Notwithstanding Petitioner's dubious assumption that he would be entitled to complete relief on the merits,⁸ Petitioner has not presented any circumstances that warrant equitable tolling. He has not diligently pursued his rights and he has not identified any impediment that prevented him from timely filing.⁹ It is not unconscionable to enforce the limitations period here and, as such, Petitioner is not entitled to equitable tolling.

III. CONCLUSION

For the foregoing reasons, Petitioner's § 2255 Motion is not timely under 28 U.S.C. § 2255(f). Accordingly, the United States’ Motion to Dismiss, ECF No. 766, is GRANTED, and Petitioner's § 2255 Motion is DISMISSED. Petitioner is ADVISED that he may appeal from this Final Order of Dismissal by forwarding, within sixty days of the entry of this Order, a written notice of appeal to the Clerk of the United States District Court at 2400 West Avenue, Newport News, Virginia 23607. The court declines to issue a certificate of appealability for the reasons stated herein.

IT IS SO ORDERED.

FOOTNOTES

1.   An unnamed, unindicted juvenile also participated in the Hardy robbery and murder. See ECF No. 485 at 3-5.

2.   See infra note 8.

3.   The United States requested an additional sixty days to file a supplemental response if the court reached the merits of Petitioner's claims. Id. at 6. Because Petitioner's claims are procedurally time-barred, no responsive filing addressing the merits of Petitioner's claims is required.

4.   See infra note 6.

5.   Petitioner provides no explanation for why Ground Three or his ineffective assistance of counsel claim are timely. Petitioner claims that Grounds One and Four are timely because, he argues, challenges to the court's subject matter jurisdiction and breach of contract claims can be introduced at any time. See ECF No. 762 at 12. While challenges to subject matter jurisdiction can be made at any time, even for the first time on appeal, this general proposition does not provide an end-run around § 2255’s explicit statute of limitations. See Taylor v. United States, 2021 WL 8443804, at *4 (S.D.W. Va. Sept. 21, 2021) (finding that a petitioner's argument challenging jurisdiction did not excuse untimely filing), report and recommendation adopted, 2022 WL 1101927 (S.D.W. Va. Apr. 13, 2022); Peacock v. United States, 2011 WL 317972, at *2 (E.D.N.C. Jan. 28, 2011) (finding that a petitioner could not challenge the jurisdiction of the court in a collateral attack irrespective of § 2255’s statute of limitations). Petitioner's contention that an allegation of breach of contract by the United States could serve to extend § 2255’s statute of limitations is patently frivolous and can be dismissed without further discussion.

6.   A liberal construction of Petitioner's timeliness argument in the § 2255 Motion could interpret it to additionally assert that the Green decision constituted a new fact that would extend Petitioner's filing deadline under § 2255(f)(4). See ECF No. 762 at 10 (stating that Petitioner failed to file his claim earlier because he previously “lacked the knowledge that [Green] gained”). However, the only “fact” that the Green provided to Petitioner was that Davis was potentially applicable to his case and reading the “fact” language in subparagraph (4) to include applications of new Supreme Court precedent to Petitioner's conduct would render the one-year limitation in subparagraph (3) “superfluous.” See Whiteside v. United States, 775 F.3d 180, 185 (4th Cir. 2014) (en banc) (holding that a subsequent change in the law is not a cognizable fact under subparagraph (4)). Accordingly, to the extent Petitioner has attempted to claim timeliness based on a new fact, subparagraph (4) is inapplicable to his case.

7.   The Supreme Court decided Taylor on June 21, 2022. An incarcerated person's legal papers are considered filed when they are delivered to prison authorities for mailing. See Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). In the absence of any other indication of the date on which the papers were delivered to prison authorities, the court will assume that they were delivered no earlier than the date on which they were signed. Here, Petitioner signed his § 2255 Motion on July 10, 2023. A previous § 2255 motion was filed in Petitioner's case, signed June 22, 2023, which was subject to defect for lack of signature. The earlier, defective § 2255 motion would have also been untimely and, moreover, it appears Petitioner was unaware that it had been filed on his behalf, as the previous motion was entirely prepared and signed by codefendant Green. See ECF No. 755-1.

8.   Petitioner would be unsuccessful in challenging his life sentence on Count 34 even if he had timely filed the § 2255 Motion. In Green, the Fourth Circuit recognized that Davis invalidated the § 924(j) conviction on Count 29 because it was based on the predicate crimes of conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery of John Henry Green. Green, 67 F.4th at 662. However, in addressing the prejudice associated with Green's procedural default (an analysis essentially weighing the merits of his claim), the Fourth Circuit found that Green's § 924(j) conviction on Count 34 remained valid under the elements clause of § 924(c) because it was based on the completed robbery of Demareo Dontae Hardy. Id. at 668. This is the same count of conviction that Petitioner seeks to challenge here. Although Green had a petition for a writ of certiorari challenging the Fourth Circuit's decision pending at the time Petitioner filed his § 2255 Motion, the Supreme Court denied Green's petition for certiorari on October 2, 2023.

9.   In fact, Petitioner did not even file his first defective petition. It was submitted on his behalf by Andra Green. See ECF No. 755; supra note 7.

REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE