UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

UNITED STATES OF AMERICA, )

)

v. ) No. 14-cr-00009 (KBJ)

)

RALPH TERRY, )

)

Defendant. )

)

MEMORANDUM OPINION

Defendant Ralph Terry is currently serving a 130-month sentence for conspiracy 

to distribute and possess with intent to distribute cocaine and cocaine base, in violation 

of 21 U.S.C. §§ 846 and 841(b)(1)(C). (See Def.’s Suppl. Mot. to Vacate J. under 28 

U.S.C. § 2255 (“Def.’s Mot.”), ECF No. 47, at 5, 8–9.) 1

 Before this Court at present is 

Terry’s motion to vacate and correct his sentence under section 2255 of Title 28 of the 

United States Code. (See id.; see also Def.’s Mot. under 28 U.S.C. § 2255 to Vacate, 

Set Aside, or Correct Sentence, ECF No. 37.) Terry contends that his sentence was 

unlawfully increased based on the “entirely meaningless and effectively inoperable”

residual clause of the career offender guideline of the 2013 U.S. Sentencing Guidelines 

Manual. (See Def.’s Mot. at 3–4.) Terry also argues that his motion is timely under 28 

U.S.C. § 2255(f), because he filed it less than one year after the Supreme Court decided

Johnson v. United States, 576 U.S. 591 (2015)—a case that, in Terry’s view, recognized 

a new right “not to be sentenced to increased punishment because of the residual 

clause[.]” (See Def.’s Mot. at 4; see also id. at 41–47.) The Government opposes 

 1 Page-number citations refer to the page numbers that the Court’s electronic filing system automatically assigns. 
2

Terry’s motion, arguing, inter alia, that the motion is time-barred “because Johnson

does not apply to [Terry’s] claim[.]” (See Gov’t Opp’n to Def.’s Mot. to Vacate J. 

under 28 U.S.C. § 2255 & Suppl. Mot. to Vacate J., ECF No. 53, at 2; see also Gov’t 

Notice of Suppl. Authority, ECF No. 59.) 

The Court has carefully considered the parties’ submissions and the relevant case 

law, and for the reasons discussed below, the Court concludes that Terry’s motion is 

untimely under 28 U.S.C. § 2255, because the right recognized in Johnson does not 

apply to the residual clause of the career offender guideline. Accordingly, Terry’s 

motion to vacate his sentence must be DENIED.

I.

At the time this Court imposed Terry’s sentence in 2014, the U.S. Sentencing 

Guidelines categorized defendants convicted of a felony crime of violence or 

controlled substance offense as career offenders if they had “at least two prior felony 

convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. 

§ 4B1.1(a) (2013). Under the Guidelines, a prior felony conviction under federal or 

state law counted as a “crime of violence” if, among other things, it “involve[d] conduct 

that presents a serious potential risk of physical injury to another[,]” id. § 4B1.2(a) 

(2013)—a catch-all definition commonly referred to as “the residual clause.”

As the Court explained at Terry’s sentencing hearing, Terry qualified as a career 

offender under the Guidelines based on his prior state-law convictions for fourth-degree 

burglary, second-degree assault, and possession with intent to distribute cocaine. (See 

Sentencing Hr’g Tr., Ex. A to Def.’s Mot., ECF No. 47-1, at 7–8; see also Final 

Presentence Investigation Report, ECF No. 28, ¶¶ 88, 89, 94.) As a consequence, 
3

Terry’s criminal history category increased by three points, raising his advisory 

Guidelines range from 70 to 87 months of imprisonment to 151 to 188 months of 

imprisonment. (See Sentencing Hr’g Tr. at 8–9; Def.’s Mot. at 3.) Although the Court 

ultimately imposed a sentence below the advisory Guidelines range in light of the 

parties’ binding plea agreement, the Court noted that Terry’s status as a career offender 

played a significant role in the Court’s evaluation of his history and characteristics. 

(See Sentencing Hr’g Tr. at 21.) 2

 

Approximately one year after Terry’s sentence was imposed, the Supreme Court 

issued its decision in Johnson v. United States, which invalidated on vagueness grounds 

the Armed Career Criminal Act’s residual clause—a provision that is identical to the 

career offender guideline’s residual clause. See Johnson, 576 U.S. at 593–95, 606. 

Notwithstanding the identical wording of the two provisions, however, the Supreme 

Court rejected a void-for-vagueness challenge to the residual clause of the career 

offender guideline in Beckles v. United States, 137 S. Ct. 886 (2017). The Beckles

Court explained that, unlike the Armed Career Criminal Act at issue in Johnson, “the 

advisory Guidelines do not fix the permissible range of sentences[,]” id. at 892, and 

thus “do not implicate the twin concerns underlying vagueness doctrine—providing 

notice and preventing arbitrary enforcement[,]” id. at 894. In so holding, the Supreme 

Court clarified that its decision in no way shielded the advisory Guidelines from 

“constitutional scrutiny” as a general matter; instead, the Court’s decision simply held 

 2 The Court’s decision to impose a sentence below the advisory Guidelines range also took into account

a forthcoming amendment to the Guidelines that would decrease Terry’s offense level by two points 

and lower the applicable advisory Guidelines range to 130 to 162 months of imprisonment. (See id. at 

20–21.) 
4

that “the advisory Sentencing Guidelines, including [the career offender guideline’s]

residual clause, are not subject to a challenge under the void-for-vagueness 

doctrine.” Id. at 895–96.

Pointing to the Supreme Court’s decisions in Johnson and Beckles, Terry argues 

that his sentence was “unconstitutionally, unlawfully, and unjustly increased based on 

an advisory Guidelines provision that, as the Supreme Court recognized for the first 

time in Johnson, was so meaningless that this Court could not objectively, fairly, and

reliably apply it to him.” (See Def.’s Mot. at 13–14.) On that basis, Terry seeks relief 

under 28 U.S.C. § 2255, a provision of the Antiterrorism and Effective Death Penalty 

Act that permits federal prisoners to “move . . . to vacate, set aside or correct the[ir]

sentence[,]” on “the ground that the sentence was imposed in violation of the 

Constitution or laws of the United States, or . . . is otherwise subject to collateral 

attack[.]” 28 U.S.C. § 2255(a). For Terry’s motion to be timely under section 2255, 

however, he must have filed the motion within one year of “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[.]” Id. § 2255(f)(3). 3 Terry filed his motion within a year after the 

Supreme Court’s decision in Johnson, and Johnson has been made retroactively 

applicable to cases on collateral review. See Welch v. United States, 136 S. Ct. 1257, 

 3 Under section 2255(f), a prisoner’s motion to vacate his sentence will also be timely if filed within 

one year of “the date on which the judgment of conviction becomes final;” “the date on which the

impediment to making a motion created by governmental action . . . is removed, if the movant was 

prevented from making a motion by such governmental action;” or “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)(1)–(2), (4). Because Terry filed his motion over a year after his 

judgment of conviction became final and has not identified any impediment or newly discovered facts 

supporting his claim, none of these additional provisions applies. (See Def.’s Mot. at 41–47 (focusing 

only on section 2255(f)(3)); Gov’t Opp’n at 13–14.)
5

1265 (2016). Thus, the timeliness of Terry’s motion turns on whether Johnson in fact 

recognized the right that Terry asserts: namely, the general right “not to be sentenced to 

increased punishment because of the residual clause . . . in any case.” (See Def.’s Mot.

at 4 (emphasis added).) While the D.C. Circuit has not yet addressed this issue in a 

published opinion, three district judges in this jurisdiction have each concluded that the 

right recognized in Johnson does not extend to the residual clause of the career offender 

guideline, in light of the Supreme Court’s subsequent holding in Beckles, see United 

States v. Fogle, No. 03-cr-187, 2019 WL 4750314, at *3 (D.D.C. Sept. 30, 2019); 

United States v. Small, No. 10-cr-112-4, 2019 WL 3290591, at *3 (D.D.C. July 22, 

2019); United States v. Upshur, No. 10-cr-251, 2019 WL 936592, at *5 (D.D.C. Feb. 

26, 2019), a view that the D.C. Circuit has confirmed in a recent unpublished order, 

United States v. Fogle, No. 19-3072, 2020 WL 1918273 (D.C. Cir. Apr. 9, 2020) (per 

curiam). 

II.

This Court joins the chorus and concludes that Terry’s motion is untimely, on the 

grounds that, per Beckles, the rule announced in Johnson does not apply to the residual 

clause in the career offender guideline. Stated simply, the Supreme Court’s decision in 

Beckles makes clear that Johnson’s holding—that the Armed Career Criminal Act’s 

residual clause is unconstitutionally vague—extends, at most, to “residual clauses that 

are subject to void-for-vagueness challenges,” Upshur, 2019 WL 936592, at *5, and it 

also clarifies that the advisory Guidelines unequivocally do not fit that description. See 

Beckles, 137 S. Ct. at 892. Thus, it simply cannot be the case that Johnson announced a 

right “not to be sentenced to increased punishment” under the residual clause of the 
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advisory career offender guideline (see Def.’s Mot. at 4). See Fogle, 2019 WL 4750314, 

at *3; Small, 2019 WL 3290591, at *3; Upshur, 2019 WL 936592, at *5; see also, e.g.,

Fogle, 2020 WL 1918273; United States v. Green, 898 F.3d 315, 321 (3d Cir. 2018) 

(“[I]n light of Beckles, Johnson’s holding as to the residual clause in the [Armed Career 

Criminal Act] created a right only as to the [Armed Career Criminal Act], and not a 

broader right that applied to all similarly worded residual clauses, such as that found in 

the advisory Sentencing Guidelines.”); United States v. Brown, 868 F.3d 297, 301–02 

(4th Cir. 2017) (similar).

Undaunted, Terry contends that even if the Court does not accept his argument 

under section 2255(f)(3), his motion is still timely under a variety of equitable 

principles and exceptions. None of Terry’s arguments are persuasive. To start, Terry 

points to section 2255(f)(1), which provides an alternative way to satisfy section 2255’s 

statute of limitations—specifically, by filing the motion within one year of the date on 

which the conviction became final. See 28 U.S.C. § 2255(f)(1). Although Terry 

concedes that he filed his motion more than one year after his conviction became final, 

he argues that this one-year deadline should be equitably tolled, because he had no 

claim under existing Supreme Court precedent until Johnson, and he filed his motion 

shortly after that case was decided. (See Def.’s Mot. at 48.) This Court disagrees. 

Equitable tolling is appropriate only when the defendant “shows (1) that he has been 

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his 

way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010)

(internal quotation marks and citation omitted). And in the context of a section 2255 

motion, “the equitable tolling standard focuses not on whether unfavorable precedent 
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would have rendered a timely claim futile, but on whether a factor beyond the 

defendant’s control prevented him from filing within the limitations period at all.” See 

Head v. Wilson, 792 F.3d 102, 111 (D.C. Cir. 2015) (internal quotation marks and 

citation omitted); Upshur, 2019 WL 936592, at *8. Here, it appears that the only factor 

preventing Terry from filing his motion within the statute of limitations period was the 

unfavorable case law preceding Johnson (see Def.’s Mot. at 48)—a factor that is 

insufficient for purposes of equitable tolling, see Head, 792 F.3d at 111; Upshur, 2019 WL 

936592, at *8. What is more, Terry “did not actually accrue a claim under Johnson[,]” 

because, even though Johnson “raised a question as to the validity of the residual clause in 

the context of the career offender guideline[,] . . . it did not answer that question.” Small, 

2019 WL 3290591, at *4. And “[t]o the extent that [Terry] asserts that case law rejecting 

the argument that he seeks to make formed a barrier to him asserting this claim, that barrier 

remains.” Fogle, 2019 WL 4750314, at *3. Therefore, the Court concludes that Terry is 

not entitled to equitable tolling.

Terry next asserts that, even if his motion is untimely, the Court should permit 

him to proceed with his claim because he is “actually innocent of the sentence 

imposed.” (Def.’s Mot. at 49.) It is true that courts can “excuse procedural barriers to 

relief . . . when a constitutional violation probably has caused the conviction of one 

innocent of the crime[,]” United States v. Baxter, 761 F.3d 17, 28 (D.C. Cir. 2014) 

(internal quotation marks and citation omitted); however, the defendant must at least 

claim that he did not commit the offenses at issue in order for the actual innocence 

exception to apply, see Bousley v. United States, 523 U.S. 614, 623 (1998); Upshur, 

2019 WL 936592, at *9–10. And, in the instant case, Terry does not contend that he is 
8

innocent of the prior felony convictions that gave rise to his career offender status; 

instead, he maintains only that such convictions are “legally ineligible for the recidivist 

sentencing enhancement applied to him[.]” (See Def.’s Mot. at 50.) Such a claim of 

legal insufficiency, standing alone, does not warrant application of the actual innocence 

exception. See Bousley, 523 U.S. at 623. And in the absence of any contention that 

Terry did not commit the crimes underlying the career offender enhancement, this Court 

concludes that Terry has failed to demonstrate the type of actual innocence that could 

excuse the untimeliness of his motion. See, e.g., Upshur, 2019 WL 936592, at *9–10; 

see also Baxter, 761 F.3d at 29 (noting that “[w]ithout a demonstration of actual 

innocence, even the existence of a concededly meritorious constitutional violation is not 

in itself sufficient to establish a miscarriage of justice that would allow a habeas court 

to reach the merits of a barred claim” (internal quotation marks and citation omitted)).

In a final attempt to circumvent section 2255’s statute of limitations, Terry 

argues that section 2255(f) is unconstitutional as applied to him, because it violates the 

Suspension Clause of the Constitution, a provision that guarantees the “Privilege of the 

Writ of Habeas Corpus [will] not be suspended, unless when in Cases of Rebellion or 

Invasion the public Safety may require it[,]” U.S. Const. art. I, § 9, cl. 2. (See Def.’s 

Mot. at 50–53.) Terry contends that, “to the extent that § 2255(f) bars [his] claim[,]” he 

will be left with “no meaningful opportunity to demonstrate that he is incarcerated 

‘pursuant to the erroneous application or interpretation of relevant law[,]’”—and will 

therefore be deprived of the exact privilege to which the writ of habeas corpus entitles 

him. (See id. at 52 (quoting Boumediene v. Bush, 553 U.S. 723, 779 (2008) (internal 

quotation marks and citation omitted)).) This argument need not detain the Court for 
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long, because section 2255’s statute of limitations in no way prevented Terry from 

filing a section 2255 motion or otherwise deprived him of his right to seek habeas 

relief. Although Terry’s motion may well have been denied had he filed it within one 

year of the date on which his conviction became final (and thus before the Supreme 

Court issued its decision in Johnson), the fact that his motion may have been 

unsuccessful or futile does not render section 2255(f) an unlawful suspension of the 

writ. See Upshur, 2019 WL 936592, at *10; Small, 2019 WL 3290591, at *5. Plus,

even assuming for the purposes of argument that section 2255’s statute of limitations

did render Terry’s motion an “inadequate or ineffective” means to “test the legality of

[his] detention” (Def.’s Mot. at 52), the savings clause of section 2255 would permit

him to file a habeas petition in the district where he is currently incarcerated, see 28 

U.S.C. § 2255(e) (allowing federal prisoners to file a habeas petition under 28 U.S.C. 

§ 2241 if section 2255’s remedy “is inadequate or ineffective to test the legality of 

[their] detention”); see also Rumsfeld v. Padilla, 542 U.S. 426, 442 (2004) (explaining

that a defendant’s petition for habeas corpus under 28 U.S.C. § 2241(a) must be filed in 

the district in which he is being detained). Thus, contrary to Terry’s assertions, the 

Court cannot conclude that section 2255(f) “divest[s]” Terry of “his right to file a 

habeas petition” in contravention of the Suspension Clause. (See Def.’s Mot. at 53.) 

And, as a result, the Court has no basis on which to overlook the untimeliness of 

Terry’s motion. 

III.

As set forth in the accompanying Order, and for the reasons explained above, 

this Court has determined that Terry’s motion to vacate his sentence must be DENIED 
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as untimely under 28 U.S.C. § 2255(f).

4

Date: December 29, 2020 Ketanji Brown Jackson u

KETANJI BROWN JACKSON

United States District Judge

 4 The Court notes that there is a related outstanding dispute over whether the collateral review waiver 

in the parties’ plea agreement bars Terry’s section 2255 motion in any event. (See Gov’t Opp’n at 2; 

Def.’s Suppl. Mem., ECF No. 56; Gov’t Reply to Def.’s Suppl. Mem., ECF No. 58.) The Government 

contends that Terry unequivocally waived his right to seek collateral review of his sentence (see Gov’t 

Opp’n at 2; Gov’t Reply to Def.’s Suppl. Mem. at 3–10), while Terry contends that any such waiver is 

unenforceable (see Def.’s Suppl. Mem. at 1). Given the Court’s instant conclusion that Terry’s section 

2255 motion is untimely, it need not decide this waiver issue.