Bryant v. United States ( 2020 )

18-1141
Bryant v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
13th day of July, two thousand twenty.
PRESENT: DENNIS JACOBS,
ROBERT D. SACK,
PETER W. HALL,
Circuit Judges.
_____________________________________
John Oliver Bryant,
Petitioner–Appellant,
v. No. 18-1141
United States of America,
Respondent–Appellee.
_____________________________________
For Appellant: RANDOLPH Z. VOLKELL, Law Office of Randolph Z.
Volkell, Merrick, New York
For Appellee: TIMOTHY V. CAPOZZI, Assistant United States
Attorney (Anna M. Skotko, Assistant United States
Attorney, on the brief), for Audrey Strauss, United
States Attorney for the Southern District of New
York, New York, New York
Appeal from a judgment of the United States District Court for the Southern District of
New York (Briccetti, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Petitioner–Appellant John Oliver Bryant appeals from an order entered in the United States
District Court for the Southern District of New York (Briccetti, J.) dismissing his petition for a
writ of habeas corpus as untimely pursuant to the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), 28 U.S.C. § 2255. We agree that Bryant’s petition was untimely and affirm its
dismissal.
Bryant’s petition argues that his 1994 sentence as a career offender under the Sentencing
Guidelines—at the time mandatory absent limited circumstances—is unconstitutional because the
residual clause of the career offender guideline under which he was sentenced is unconstitutionally
vague per Johnson v. United States, 135 S. Ct. 2551, 2557 (2015) (holding that the similarly-
worded residual clause in the Armed Career Criminal Act (ACCA), 18 U.S.C § 924(e)(2)(B), is
unconstitutionally vague). As relevant here, AEDPA’s one-year statute of limitation runs from the
later of “the date on which the judgment of conviction becomes final; . . . [or] 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). Bryant argues that his petition is timely because he filed it on June 23, 2016,
within a year of Johnson (decided June 26, 2015). See Welch v. United States, 136 S. Ct. 1257
(2016) (holding that Johnson is retroactive).
This Court recently held that the right recognized in Johnson in the context of ACCA does
not extend to the residual clause of the career offender sentencing guideline and that, as a result,
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the petition of a movant sentenced under that guideline, even if filed within a year of Johnson, is
not timely under § 2255(f)(3). Nunez v. United States, 954 F.3d 465, 467 (2d Cir. 2020); see also
id. at 469 (“Our decision aligns with that of the majority of circuits to have addressed the issue.”
(citing United States v. London, 937 F.3d 502 (5th Cir. 2019); United States v. Blackstone, 903
F.3d 1020 (9th Cir. 2018); Russo v. United States, 902 F.3d 880 (8th Cir. 2018); United States v.
Green, 898 F.3d 315 (3d Cir. 2018); United States v. Greer, 881 F.3d 1241 (10th Cir. 2018); United
States v. Brown, 868 F.3d 297 (4th Cir. 2017); Raybon v. United States, 867 F.3d 625 (6th Cir.
2017))). “It is a longstanding rule of our Circuit that a three-judge panel is bound by a prior panel’s
decision until it is overruled either by this Court sitting en banc or by the Supreme Court.” Doscher
v. Sea Port Grp. Sec., LLC, 832 F.3d 372, 378 (2d Cir. 2016). Accordingly, we are bound by our
holding in Nunez, and we too decline to find that Bryant’s petition is timely because it was filed
within a year of Johnson.
Bryant argues that denying him access to relief under § 2255 would violate the Suspension
Clause because all individuals in his situation (sentenced as a career offender under the residual
clause at a time when the sentencing guidelines were mandatory) are outside the one-year statute
of limitations. See Nunez, 954 F.3d at 472 (Pooler, J., concurring) (“[O]ur decision ‘denies
petitioners, and perhaps more than 1,000 like them, a chance to challenge the constitutionality of
their sentences.’ Therein lies the injustice.” (quoting Brown v. United States, 139 S. Ct. 14, 14
(2018) (Sotomayor, J., dissenting from denial of certiorari)). We apply plain error review to
Bryant’s Suspension Clause argument because Bryant did not raise it before the district court.
United States v. Miller, 263 F.3d 1, 4 (2d Cir. 2001) (“Issues not raised in the district court . . . will
be deemed forfeited on appeal and addressed only upon a showing that the [district] court
committed plain error.”). For an error to be “plain” it must be clear under current law. See, e.g.,
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United States v. Gamez, 577 F.3d 394, 400 (2d Cir. 2009). “Typically, we will not find plain error
where the operative legal question is unsettled.” Id. (internal quotation marks omitted).
The Suspension Clause states: “The privilege of the writ of habeas corpus shall 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. Our Court has found that AEDPA’s statute of limitations does not per se
violate the Suspension Clause. Weaver v. United States, 195 F.3d 123, 124 (2d Cir. 1999); see also
Rodriguez v. Artuz, 990 F. Supp. 275, 282–83 (S.D.N.Y. 1998) (holding that one-year limit placed
on state court prisoners pursuant to § 2254 does not violate the Suspension Clause), aff’d, 161 F.3d
763, 764 (2d Cir. 1998) (per curiam) (affirming for “substantially the reasons stated by the district
court”).
In Weaver, we noted that in some cases the one-year limitations period may be an
unreasonable barrier and raise a Suspension Clause concern. 195 F.3d at 125. Bryant, however,
cites no authority for the proposition that the one-year limitations period is an unreasonable barrier
in this case and we are aware of none. We are thus precluded from ruling in his favor because we
cannot find plain error. See Gamez, 577 F.3d at 400 (“Typically, we will not find plain error where
the operative legal question is unsettled.” (internal quotation marks omitted)). We have considered
Bryant’s remaining arguments and find them to be without merit. We hereby AFFIRM the
judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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