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Edwards v. United States

United States District Court, D. South Carolina, Spartanburg Division

May 18, 2018

Alvin Dean Edwards, Petitioner,
v.
United States of America, Respondent.

          ORDER AND OPINION

         This matter is before the court pursuant to Petitioner's Motion to Vacate (ECF No. 40) and Supplemental Motion to Vacate (ECF No. 47).[1] Petitioner seeks relief from his sentence under Johnson v. United States, 135 S.Ct. 2551 (2015). (ECF Nos. 40 at 5, 47 at 1.) For the reasons stated below, the court STAYS proceedings on Petitioner's Motions to Vacate (ECF No. 40, 47) pending until the Unites States Court of Appeals for the Fourth Circuit's decision in Simms and Ali.[2]

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On November 12, 2008, Petitioner was charged with committing a Hobbs Act robbery, [3]brandishing a firearm in furtherance of the robbery, and being a felon in possession of a firearm. (ECF No. 2.) On May 21, 2009, Petitioner pleaded guilty to all charges in the indictment. (ECF No. 28.) Petitioner was sentenced to a term of 130 months of incarceration and five (5) years of supervised release. (ECF No. 32.)

         On June 15, 2016, Petitioner filed a pro se Motion to Vacate under 28 U.S.C. § 2255. (ECF No. 40.) On June 21, 2016, the court granted leave for Petitioner's counsel to file a supplemental motion (ECF No. 46), and on July 21, 2016, a supplemental motion was filed by Petitioner's counsel (ECF No. 47). The government responded (ECF No. 49), and Petitioner replied (ECF No. 51).

         II. LEGAL STANDARD

         In order to move for relief under 28 U.S.C. § 2255, Petitioner must plead that he was sentenced “(1) in violation of the Constitution or laws of the United States, (2) the court was without jurisdiction to impose such sentence, (3) that the sentence was in excess of the maximum authorized by law, or (4) that his sentence is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).

         Pursuant to 28 U.S.C. § 2555(f), a petitioner has one year from the time his or her conviction becomes final to file a motion under this section, or one year from “the date on which the right asserted was initially recognized by the United States Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” See 28 U.S.C. § 2255(f)(1), (3).

         III. ANALYSIS

         Petitioner asserts that his sentence is in excess of the maximum authorized by law because the residual clause in 18 U.S.C. § 924(c)(3)(B)(ii)[4] was found to be unconstitutionally vague in Johnson v. United States. In Johnson, the United States Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague in violation of the Due Process Clause of the Fifth Amendment to the United States Constitution. 135 S.Ct. at 2563. Johnson was decided on June 26, 2015, and presented a new right for defendants sentenced to the mandatory minimum sentence of fifteen (15) years based on the residual clause of the statutory definition of violent felony. In Welch v. United States, the Supreme Court held that Johnson had a retroactive effect in cases on collateral review. 136 S.Ct. 1257, 1268 (2016).

         Petitioner seeks relief under Johnson, but Petitioner was sentenced under § 924(c)(3)(B) not § 924(e)(2)(B)(ii). In Johnson, the Supreme Court only ruled on the ambiguity of the residual clause within the statutory definition of violent felony § 924(e)(2)(B)(ii). Johnson, 135 S.Ct. at 2563. Johnson did not consider the residual clause of §924(c)(3). See United States v. Brown, 868 F.3d 297, 302 (4th Cir. 2017) (“Johnson did not discuss the mandatory Sentencing Guidelines' residual clause at issue here or residual clauses in other versions of the Sentencing Guidelines.”) (citing Johnson, 135 S.Ct. at 2555-56).

         Nonetheless, Petitioner posits that the holding in Johnson invalidates the residual clause in §924(c)(3)(B), and Petitioner asserts § 924(c)(3)(B) is the only subsection that a Hobbs Act robbery can fit within. (ECF No. 47 at 3.) The Court of Appeals for the Fourth Circuit is currently considering whether Johnson invalidates the residual clause in § 924(c)(3)(B) and whether a Hobbs Act robbery satisfies § 924(c)(3)(A). See United States v. Simms, No. 15-4640 (4th Cir. argued Oct. 28, 2016); United States v. Ali, No. 15-4433 (4th Cir. filed July 10, 2015).[5] The Court finds it appropriate to stay proceedings on Petitioner's § 2255 motion until the Court of Appeals for the Fourth Circuit decides Simms and Ali.

         IV. CONCLUSION

         For the reasons stated above, the court STAYS proceedings on Petitioner's Motion to Vacate (ECF No. 40) and Supplemental Motion to Vacate (ECF No. 47) until the Court of Appeals for the Fourth Circuit decides Simms and Ali.

         IT ...


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