Cousins v. United States
198 F. Supp. 3d 621
E.D. Va.2016Background
- Petitioner convicted after jury trial on multiple counts including RICO conspiracy, Hobbs Act robbery, VICAR murder and assault, several § 924(c) firearms counts, and firearms possession; sentenced to life plus 720 months.
- Fourth Circuit affirmed on direct appeal; Petitioner did not file certiorari, so judgment became final on December 28, 2012.
- Petitioner filed a pro se § 2255 motion on June 13, 2016 (file-stamped June 15, 2016), claiming Johnson/Welch newly recognized error to attack his § 924(c) convictions.
- The § 2255 motion appears time-barred under AEDPA’s one-year limitation, which ran from finality of judgment (28 U.S.C. § 2255(f)(1)).
- Petitioner argues Johnson (invalidating ACCA residual clause) and Welch (making Johnson retroactive) render the § 924(c) residual clause void and revive his timeliness under § 2255(f)(3).
- Court found Petitioner’s § 924(c) predicate offenses (VICAR murder; VICAR assault; Hobbs Act robbery) qualify as crimes of violence under § 924(c)(3)(A) (the force clause), so Johnson does not help; court denied appointment of counsel and gave Petitioner 30 days to show timeliness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2255 motion is timely | Cousins contends Johnson/Welch created a new right under § 2255(f)(3) making his 2016 filing timely | Government argues judgment became final Dec. 28, 2012 and AEDPA one-year deadline expired Dec. 28, 2013 | Motion appears untimely; Petitioner given 30 days to show otherwise |
| Whether Johnson/Welch invalidates § 924(c)(3)(B) residual clause for his convictions | Cousins contends Johnson’s invalidation of ACCA residual clause applies to § 924(c)’s residual clause, so his § 924(c) convictions are invalid | Government argues his predicate offenses fall under § 924(c)(3)(A) (force clause), so residual clause is not implicated and Johnson is inapplicable | Court held predicates meet the force clause; Johnson does not provide relief |
| Whether Petitioner’s VICAR predicates are divisible and require modified categorical approach | Petitioner implicitly argues predicates do not categorically qualify as violent offenses | Government applies modified categorical approach to VICAR statutes and charging documents to identify underlying offenses | Court used the modified categorical approach and found murder and assault predicates qualify as crimes of violence under the force clause |
| Whether counsel should be appointed for § 2255 proceedings | Cousins requested appointment of counsel | Government argued no exceptional circumstances and no colorable timely claim | Court denied appointment of counsel (no exceptional circumstances; motion appears untimely/no colorable claim) |
Key Cases Cited
- Gonzalez v. Thaler, 565 U.S. 134 (explains finality when certiorari not sought)
- Johnson v. United States, 135 S. Ct. 2551 (invalidated ACCA residual clause)
- Welch v. United States, 136 S. Ct. 1257 (made Johnson retroactive on collateral review)
- Descamps v. United States, 133 S. Ct. 2276 (explains modified categorical approach and focus on elements)
- Mathis v. United States, 136 S. Ct. 2243 (distinguishes divisible statutes and dictates when modified categorical approach applies)
- Houston v. Lack, 487 U.S. 266 (prison mailbox rule for pro se filings)
- Pennsylvania v. Finley, 481 U.S. 551 (no constitutional right to counsel in collateral attack)
- Tyler v. Cain, 533 U.S. 656 (authority on retroactivity and collateral review)
- United States v. Fuertes, 805 F.3d 485 (discusses categorical/modified categorical approaches)