UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

No. 14-20500

Plaintiff-Respondent,

District Judge Paul D. Borman

vs. Magistrate Judge R. Steven Whalen

JAMES FREDRICK DUBOSE,

Defendant-Petitioner.

 /

REPORT AND RECOMMENDATION

Following his plea of guilty to Assault on a Foreign Official Using a Deadly and

Dangerous Weapon, 18 U.S.C. §§ 112(a) and 2 (Count I), and Use and Carrying a Firearm

During a Crime of Violence, 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Count II), a Judgment

in a Criminal Case was entered against Defendant James Fredrick Dubose on April 6,

2015, imposing 20 months imprisonment on Count I and 84 months on Count II, to be

served consecutively. Judgment [Doc. #37]. Before the Court is Defendant’s Motion to

Vacate Sentence, filed under 28 U.S.C. § 2255 [Doc. #39], which has been referred for a

Report and Recommendation under 28 U.S.C. § 636(b)(1)(B). For the reasons discussed

below, I recommend that the motion be DENIED.

I. STANDARD OF REVIEW

Under 28 U.S.C. § 2255, a federal prisoner may file a motion to vacate, set aside,

or correct his sentence on the ground that the sentence was imposed in violation of the

-1-

Case 2:14-cr-20500-PDB-RSW ECF No. 53, PageID.252 Filed 08/15/18 Page 1 of 7
United States Constitution. “[A] defendant must show a fundamental defect in the

proceedings which necessarily results in a complete miscarriage of justice or an egregious

error violative of due process.” Fair v. United States, 157 F.3d 427, 430 (6th Cir.1998)

(internal quotation omitted); Gall v. United States, 21 F.3d 107, 109 (6th Cir.1994). To

prevail under § 2255, a petitioner must demonstrate the existence of an error of

constitutional magnitude which had a substantial and injurious effect or influence on the

verdict. Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003). Congress and the

Supreme Court have set the bar high for § 2255 petitioners. See United States v. Frady,

456 U.S. 152, 166 (1982) (“[T]o obtain collateral review relief a prisoner must clear a

significantly higher hurdle than would exist on direct appeal”).

II. DISCUSSION

Motions brought under 28 U.S.C. § 2255 are subject to a one-year statute of

limitations, which runs from the latest of the four following events described in the statute

as follows: 

“(f) A 1-year period of limitation shall apply to a motion under this section.

The limitation period shall run 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

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;

-2-

Case 2:14-cr-20500-PDB-RSW ECF No. 53, PageID.253 Filed 08/15/18 Page 2 of 7
(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).

Defendant did not appeal his plea-based conviction. Therefore, his judgment of

conviction became final on April 20, 2015, 14 days after judgment was entered.1 The

limitations period under § f(1) therefore expired one year later, on April 20, 2016. The

government acknowledges that under the “prison mailbox rule,” which provides that the

date of filing is the date an inmate delivered the pleading into the prison mail system, the

date of filing of this motion was June 10, 2016.2 Therefore, the motion is untimely under

§ f(1).

Sections 2 and 4 are not applicable to this case. This brings us to § 3, the date on

which the right asserted was initially recognized by the Supreme Court. Defendant

contends that the Supreme Court’s decision in Johnson v. United States, 135 S.Ct. 2551

(2015), which held that the residual clause of the Armed Career Criminal Act (“ACCA”),

18 U.S.C. § 924(e), was void for vagueness, is applicable to the residual clause of §

1 The conviction became final after the time for appeal expired. See

Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004). Under

Fed.R.Cr.P. 4(b)(1)(A)(i), a notice of appeal must be filed within 14 days of entry

of judgment in a criminal case.

2 The Court received the motion on June 15, 2015.

-3-

Case 2:14-cr-20500-PDB-RSW ECF No. 53, PageID.254 Filed 08/15/18 Page 3 of 7
924(c). The residual clause in the ACCA defined “violent felony” as any felony that

“involves conduct that presents a serious potential risk of physical injury to another.” 

Where the charge is Use and Carrying a Firearm During a Crime of Violence under 18

U.S.C. § 924(c), the statute defines “crime of violence” as any felony “that by its nature,

involves a substantial risk that physical force against the person or property of another

may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3)(B). The

Defendant argues that while the language of § 924(c)(3)(B) is not identical to that of

residual clause of the ACCA, the reasoning of Johnson is applicable to the former.

In a supplemental pleading [Doc. #46], Defendant cites Sessions v. Dimaya, 138

S.Ct. 1204 (2018), where the Supreme Court held that 18 U.S.C. § 16(b), which defined

“crime of violence” for purposes of determining whether a deportable alien had been

previously convicted of an aggravated felony, was, under the reasoning of Johnson,

unconstitutionally vague. The § 16(b) definition read , “any other offense that is a felony

and that, by its nature, involves a substantial risk that physical force against the person or

property of another may be used in the course of committing the offense.” Defendant

argues that as was the case with Dimaya, the Supreme Court’s Johnson decision

necessarily dictates that the definition of “crime of violence” in 18 U.S.C. § 924(c)(3)(B)

is unconstitutionally vague.

-4-

Case 2:14-cr-20500-PDB-RSW ECF No. 53, PageID.255 Filed 08/15/18 Page 4 of 7
Defendant’s position has not been without some support. In United States v.

Jackson, 865 F.3d 946, 954 (7th Cir. 2017), cert. granted, judgment vacated, 138 S. Ct.

1983 (2018), the Seventh Circuit held that § 924(c)(3)(B) was unconstitutionally vague.3

The Supreme Court vacated the judgment and remanded for further consideration in light

of Dimaya. The case is still pending in the Seventh Circuit.

Unfortunately for Defendant, the Sixth Circuit has held that the definition of

“crime of violence” in § 924(c)(3)(B) is distinguishable from the residual clause of the

ACCA, and that Johnson is inapplicable. United States v. Taylor, 814 F.3d 340 (6th Cir.

2016), rehearing en banc den. May 9, 2016, cert. den. 138 S.Ct. 1975 (May 14, 2018). In

Taylor, the Court held that “Johnson does not require reversal of Taylor's conviction,

because several factors distinguish the [ACCA's] residual clause from § 924(c)(3)(B).” Id.

at 376. In Shuti v. Lynch, 828 F.3d 440, 449-50 (6th Cir. 2016), the Sixth Circuit

reaffirmed the reasoning of Taylor, stating,

“[In Taylor], we held that 18 U.S.C. § 924(c)'s definition of a crime of

violence was not unconstitutionally vague. That conclusion, we think,

makes perfect sense because the statute at issue in Taylor is a criminal

offense and creation of risk is an element of the crime. As the Johnson

Court determined, no doubt should be cast upon laws that apply a

qualitative risk standard to real-world facts or statutory elements. Unlike the

ACCA and INA, which require a categorical approach to stale predicate

convictions, 18 U.S.C. § 924(c) is a criminal offense that requires an

3

 The Court stated, “We acknowledge that the case for distinguishing §

924(c)(3)(B) is not altogether unconvincing, but conclude that, unless we hear differently

from the Supreme Court in Dimaya, stare decisis and our recent precedents compel the

conclusion that § 924(c)(3)(B) is unconstitutionally vague.” Id. at 954.

-5-

Case 2:14-cr-20500-PDB-RSW ECF No. 53, PageID.256 Filed 08/15/18 Page 5 of 7
ultimate determination of guilt beyond a reasonable doubt—by a jury, in the

same proceeding. This makes all the difference.... As the Court made clear

this term, the ACCA's vagueness rests in large part on its operation under

the categorical approach.” Id. (Internal quotations and citations omitted).

See also United States v. Johnson, 2017 WL 3531397, at *3–4 (E.D. Mich.

2017)(“Accordingly, even if Defendant's convictions were not crimes of violence under

the elements clause of Section 924(c)(3), Defendant's argument would still fail because

under Sixth Circuit precedent Johnson did not invalidate the residual clause of Section

924(c)(3).”)(Emphasis in original).

Likewise in this case, under Sixth Circuit precedent, the Supreme Court’s

decisions in Johnson and Dimaya cannot serve to invalidate Defendant’s conviction under

§ 924(c). That being the case, the Supreme Court’s June 26, 2015 decision in Johnson

cannot serve as the time from which the statute of limitations runs under 28 U.S.C. §

2255(f)(3). Because the motion is time-barred, it should be denied. Moreover, under the

Sixth Circuit’s decisions in Taylor and Shuti, the motion would also be subject to denial

on the merits.

III. CONCLUSION

I recommend that Defendant’s Motion to Vacate Sentence, filed under 28 U.S.C. §

2255 [Doc. #39], be DENIED.

Any objections to this Report and Recommendation must be filed within fourteen

(14) days of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D.

Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further

-6-

Case 2:14-cr-20500-PDB-RSW ECF No. 53, PageID.257 Filed 08/15/18 Page 6 of 7
right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985);

Howard v. Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638

F.2d 947 (6th Cir. 1981). Filing of objections which raise some issues but fail to raise

others with specificity will not preserve all the objections a party might have to this

Report and Recommendation. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991); Smith

v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). 

Within fourteen (14) days of service of any objecting party’s timely filed

objections, the opposing party may file a response. The response shall address

specifically, and in the same order raised, each issue contained within the objections.

s/ R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: August 15, 2018

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of

record on August 15, 2018, electronically and/or by U.S. mail.

s/Carolyn M. Ciesla 

Case Manager to the

Honorable R. Steven Whalen

-7-

Case 2:14-cr-20500-PDB-RSW ECF No. 53, PageID.258 Filed 08/15/18 Page 7 of 7