United States v. Don Dandridge ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7573
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DON ANTONIO DANDRIDGE,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of Virginia, at
Abingdon. James P. Jones, District Judge. (1:03-cr-00119-JPJ-RSB-1; 1:16-cv-81046-
JPJ-RSB)
Submitted: December 29, 2020 Decided: January 13, 2021
Before NIEMEYER and MOTZ, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Frederick T. Heblich, Jr., Interim Federal Public Defender, Christine Madeleine Lee,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Roanoke, Virginia, for Appellant. Thomas T. Cullen, United States Attorney, Jean B.
Hudson, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Don Antonio Dandridge appeals from the district court’s order dismissing his 28
U.S.C. § 2255 motion, finding his motion untimely filed. The district court granted a
certificate of appealability. On appeal, Dandridge asserts that his motion is timely under
28 U.S.C. § 2255(f)(3), pursuant to United States v. Johnson, 576 U.S. 591 (2005). We
affirm.
A one-year statute of limitations applies to the filing of § 2255 motions. 28 U.S.C.
§ 2255(f). While Dandridge’s motion was filed years after his conviction became final, he
asserts that his motion is timely under § 2255(f)(3), which provides that the one-year
limitations period runs from “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.” Under subsection (3), “courts
will consider a [movant’s] motion timely if (1) he relies on a right recognized by the
Supreme Court after his judgment became final, (2) he files a motion within one year from
the date on which the right asserted was initially recognized by the Supreme Court, and
(3) the Supreme Court or this court has made the right retroactively applicable.” United
States v. Brown, 868 F.3d 297, 301 (4th Cir. 2017) (internal quotation marks and citation
omitted). Although this court can render a right retroactively applicable, only the Supreme
Court may “recognize a new right under § 2255(f)(3).” Id. Thus, for Dandridge’s § 2255
motion to qualify as timely, it must rely on a right “‘recognized’ in Johnson or another
more recent Supreme Court case. Id. A Supreme Court case recognizes an asserted right
under § 2255(f)(3) “if it has formally acknowledged that right in a definite way.” Id.
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Dandridge relied on the retroactively-applicable Johnson, see Welch v. United
States, 136 S. Ct. 1257, 1265 (2016), in his § 2255 motion challenging his career offender
status. However, as Brown confirmed, Johnson dealt only with the ACCA’s residual clause
and did not recognize that other residual clauses similarly worded to the ACCA’s residual
clause—like the career offender guidelines—are unconstitutionally vague. 868 F.3d at
303. Accordingly, under Brown’s framework, which is binding and unaltered by
subsequent case law, Dandridge did not assert a right newly recognized by the Supreme
Court, and his motion, therefore, does not qualify as timely under § 2255(f)(3).
As such, we affirm. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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