United States District Court, N.D. Mississippi, Oxford Division
ORDER GRANTING EXTENSION
M. BROWN, UNITED STATES DISTRICT JUDGE.
the Court is Johnny Clark's “Motion to Extend Time
to File Notice of Appeal and to Issue a Certificate of
Appealability.” Doc. #30.
March 25, 2015, Johnny Clark was named in a six-count
indictment charging him with three counts of armed bank
robbery in violation of 18 U.S.C. § 1951 and three
counts of discharging or brandishing a firearm during a crime
of violence in violation of 18 U.S.C. 924(c). Doc. #1. The
charges stemmed from three separate robberies: (1) an April
28, 2014, robbery of Bally's Casino (Counts One and Two);
(2) a May 31, 2014, robbery of Bally's Casino (Counts
Three and Four); and (3) a June 2, 2014, robbery of
Fitzgerald's Casino and Resort (Counts Five and Six).
22, 2015, Clark pled guilty to Counts Five and Six -
respectively, the robbery and brandishing counts related to
the June 2 robbery. See Doc. #17; Doc. #19. On
January 21, 2016, this Court sentenced Clark to 57 months
imprisonment on Count Five of the indictment (the robbery
count) and 84 months imprisonment on Count Six (the
brandishing count), to be served consecutively. Doc. #24. These
sentences fell within the sentencing guidelines, which called
for a 46- to 56-month term for Count Five, and an 84-month
mandatory consecutive term for Count Six. Clark did not
appeal his convictions or his sentence.
23, 2016, Clark filed a “Motion to Correct Sentence
under 28 U.S.C. § 2255” seeking to vacate his
sentence. Doc. #26. In his motion, Clark, citing Johnson
v. United States, 135 S.Ct. 2551 (2015), argued his
sentence was imposed in violation of the Constitution because
the sentence “was predicated on the residual
clause” of 18 U.S.C. § 924(c), which is
unconstitutionally vague. Id. at 8-9. The Government
responded in opposition to the motion October 6, 2016. Doc.
#27. Clark did not reply.
7, 2017, this Court entered an order recognizing a circuit
split on the issue of the constitutionality of the residual
clause but ultimately denying Clark's motion on the
ground that the Fifth Circuit, in two recent opinions,
expressly rejected Clark's argument. Doc. #29 at 4
(citing United States v. Jones, 854 F.3d 737, 740
(5th Cir. 2017), and United States v. Garcia, 857
F.3d 708, 711 (5th Cir. 2017)).
August 18, 2017, Clark filed this “Motion to Extend
Time to File Notice of Appeal and to Issue a Certificate of
Appealability.” Doc. #30. Three days later, on August
21, 2017, Clark filed a notice of appeal.
motion, Clark, citing Federal Rule of Appellate Procedure
4(b), seeks an extension of the time to appeal the denial of
his § 2255 motion. Doc. #30. Because § 2255 motions
are civil in nature, appeals from orders denying § 2255
motions are subject to Federal Rule of Appellate Procedure
4(a), which provides an appellant sixty days to file a notice
of appeal. United States v. Young, 966 F.2d
164, 165 (5th Cir. 1992). To the extent the sixty-day period
to file a notice of appeal has not expired, the motion for
extension is moot and will be denied.