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United States v. Bibbs

United States District Court, E.D. Michigan, Northern Division

February 28, 2017

UNITED STATES OF AMERICA, Plaintiff/ Respondent,
v.
WILLIAM JEROME BIBBS, Defendant/ Petitioner.

          ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION, DENYING PETITIONER'S MOTION TO VACATE SENTENCE, AND GRANTING GOVERNMENT'S MOTION TO DISMISS

          THOMAS 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 appeal.

         Over 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.

         I.

         Pursuant 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).

         A.

         In his 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 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;
(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 ...


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