United States District Court, E.D. Michigan, Northern Division
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND
RECOMMENDATION, DENYING PETITIONER'S MOTION TO VACATE
SENTENCE, AND GRANTING GOVERNMENT'S MOTION TO
L. LUDINGTON United States District Judge
On May 16, 2012 an indictment was issued
charging Petitioner William Jerome Bibbs with five counts
arising out of a series of armed bank robberies. See ECF No.
28. On December 17, 2012, Defendant Bibbs pleaded guilty to
one count of conspiring to commit bank robbery in violation
of U.S.C. § 371 (Count 1) and two counts of using or
carrying a firearm during and in relation to a crime of
violence in violation of 18 U.S.C. § 924(c) (Counts 3
and 5). On April 23, 2013, he was sentenced to 60 months'
imprisonment for Count 1, seven years for Count 3, and 76
months for Count 5, to run consecutively. Judgment was
entered on May 5, 2013. See ECF No. 83. Bibbs did not
three years later, on May 6, 2016, Petitioner Bibbs filed his
current motion to vacate pursuant to 28 U.S.C. § 2255.
The single ground raised by Bibbs is asserted as follows:
Movant's sentence for two (2) 18 U.S.C. 924(c) crimes
must be VACATED, in light of the Supreme Court's decision
in Johnson v. United States, 576 U.S. (2015), as
Conspiracy to Commit Robbery is not a violent crime, as the
Residual Clause is materially identical to the language set
forth at 18 U.S.C. 924(c)(3)(B). As such, there is no
‘violent' crime to allow convictions under 924(c).
See ECF No. 111. Bibbs's motion was referred to
Magistrate Judge Patricia T. Morris. See ECF No.
113. On June 6, 2016 Respondent moved to dismiss Bibbs's
petition. See ECF No. 142. On January 18, 2017 the
magistrate judge issued her report, recommending that
Bibbs's motion to vacate be denied. See ECF No.
142. The magistrate judge reasoned that Johnson was
inapplicable to Bibbs's conviction and sentence for armed
robbery under § 924(c). After obtaining an extension,
Bibbs filed five objections on February 22, 2017.
See ECF No. 149.
to Federal Rule of Civil Procedure 72, a party may object to
and seek review of a magistrate judge's report and
recommendation. See Fed.R.Civ.P. 72(b)(2). Objections must be
stated with specificity. Thomas v. Arn, 474 U.S.
140, 151 (1985) (citation omitted). If objections are made,
“[t]he district judge must determine de novo any part
of the magistrate judge's disposition that has been
properly objected to.” Fed.R.Civ.P. 72(b)(3). De novo
review requires at least a review of the evidence before the
magistrate judge; the Court may not act solely on the basis
of a magistrate judge's report and recommendation.
See Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th
Cir. 1981). After reviewing the evidence, the Court is free
to accept, reject, or modify the findings or recommendations
of the magistrate judge. See Lardie v. Birkett, 221
F.Supp.2d 806, 807 (E.D. Mich. 2002).
first three objections, Bibbs generally objects that the
magistrate judge erred in determining that his petition was
untimely, and erred in finding Johnson inapplicable
to his conviction and sentence. A motion seeking relief under
§ 2255 is untimely if it is not filed within a 1-year
period of limitation. 28 U.S.C. § 2255(f). That
limitation period shall run from the latest of
(1) the date on which the judgment of conviction becomes
(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
(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.
§ 2255(f)(1)-(4). Bibbs's petition was filed over a
year after his conviction became final under §
2255(f)(1). His petition does not allege that he was delayed
by any governmental action under § 2255(f)(2), and his
petition is not based on any newly discovered facts under
§ 2255(f)(4). Therefore, his petition is only timely if
Bibbs asserts some ...