United States District Court, D. South Carolina, Florence Division
Bryan Harwell United States District Judge.
matter is before the Court on Petitioner Charles Edward
Blakeney's pro se motion to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255. See
ECF No. 74. The Government has filed a motion for summary
judgment. See ECF No. 85. The Court denies
Petitioner's § 2255 motion and grants the
Government's motion for summary judgment for the reasons
November 2005, Petitioner pled guilty pursuant to a written
plea agreement to (1) conspiracy to possess with intent to
distribute and to distribute fifty grams or more of cocaine
base, in violation of 21 U.S.C. § 846, and (2) using and
carrying a firearm during and in relation to, and possessing
a firearm in furtherance of, a drug trafficking crime, in
violation of 18 U.S.C. § 924(c). See ECF Nos.
41, 44, & 46. The Court sentenced Petitioner to 120
months' imprisonment for the drug conspiracy charge and a
mandatory consecutive sixty months' imprisonment for the
§ 924(c) charge. See ECF No. 68. Judgment was
entered on March 16, 2006, see id., and Petitioner
did not file a direct appeal.
18, 2016,  Petitioner filed the instant § 2255
motion. See ECF Nos. 74 & 79. On July
12, 2016, the Government filed a response in opposition and a
motion for summary judgment. See ECF Nos. 84 &
85. On July 21, 2016,  Petitioner filed a response in opposition
to the Government's motion for summary judgment.
See ECF No. 88.
in federal custody may attack the validity of their sentences
pursuant to 28 U.S.C. § 2255. For a court to vacate, set
aside, or correct a sentence under § 2255, a petitioner
must prove one of the following occurred: (1) a sentence was
imposed in violation of the Constitution or laws of the
United States; (2) the court was without jurisdiction to
impose such a sentence; (3) the sentence was in excess of the
maximum authorized by law; or (4) the sentence is otherwise
subject to collateral attack. 28 U.S.C. § 2255(a). The
district yourt need not hold an evidentiary hearing on a
§ 2255 motion if “the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b);
see United States v. Thomas, 627 F.3d 534, 538 (4th
Cir. 2010). The determination of whether to hold an
evidentiary hearing ordinarily is left to the sound
discretion of the district court. Raines v. United
States, 423 F.2d 526, 530 (4th Cir. 1970).
the district court denies § 2255 relief without an
evidentiary hearing, the nature of the court's ruling is
akin to a ruling on a motion for summary judgment.”
United States v. Poindexter, 492 F.3d 263, 267 (4th
Cir. 2007). “The court shall grant summary judgment if
the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a); see
generally Rule 12 of the Rules Governing Section 2255
Cases (“The Federal Rules of Civil Procedure . . ., to
the extent that they are not inconsistent with any statutory
provisions or these rules, may be applied to a proceeding
under these rules.”). “A party asserting that a
fact cannot be or is genuinely disputed must support the
assertion by: (A) citing to particular parts of materials in
the record . . .; or (B) showing that the materials cited do
not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence
to support the fact.” Fed.R.Civ.P. 56(c)(1). “The
evidence must be viewed in the light most favorable to the
non-moving party, with all reasonable inferences drawn in
that party's favor. The court therefore cannot weigh the
evidence or make credibility determinations.”
Reyazuddin v. Montgomery Cty., 789 F.3d 407, 413
(4th Cir. 2015) (internal citation and quotation marks
asserts he is entitled to be resentenced in light of
Johnson v. United States, 135 S.Ct. 2551 (2015),
arguing Johnson implicitly invalidated the residual
clause in 18 U.S.C. § 924(c)(3)(B). See ECF No.
79 at p. 4; ECF No. 88. The Government contends
Johnson is inapplicable. See ECF No. 84.
924(c) prohibits the possession of a firearm in furtherance
of a crime of violence or a drug trafficking
crime.” United States v. Hare, 820 F.3d 93,
105-06 (4th Cir. 2016) (discussing 18 U.S.C. § 924(c)).
“[T]he term ‘drug trafficking crime' means
any felony punishable under the Controlled Substances Act (21
U.S.C. [§§] 801 et seq.) . . . .” 18 U.S.C.
In Johnson, the Supreme Court held that the
definition of “violent felony” found in the
residual clause of the Armed Career Criminal Act is
unconstitutionally vague. 135 S.Ct. at 2557. That clause
defines a “violent felony” as any felony that
“involves conduct that presents a serious potential
risk of physical injury to another.” 18 U.S.C. §
924(e)(2)(B)(ii). Section 924(c) similarly contains a
residual clause that defines a “crime of
violence” as any felony that “by its nature,
involves a substantial risk that physical force against the
person or property of another may be used in the course of
committing the offense.” 18 U.S.C. § 924(c)(3)(B).
Hare, 820 F.3d at 106 n.10. “The drug
trafficking portion of § 924(c)(2) does not contain a
residual clause, and states with particularity which charges
will serve as underlying crimes for a § 924(c)
conviction.” United States v. Virgil Lamonte
Johnson, No. 3:12-cr-00850-CMC-3, 2018 WL 2063993, at *3
(D.S.C. May 3, 2018).
Petitioner's § 924(c) conviction is predicated on a
drug trafficking crime, not a crime
of violence. Specifically, his guilty plea to conspiring to
possess with intent to distribute and to distribute fifty
grams or more of cocaine base, in violation of 21 U.S.C.
§ 846, was the predicate drug trafficking crime. Thus,
Petitioner is not entitled to relief under Johnson.
See, e.g., Hare, 820 F.3d at 106 (rejecting
a Johnson challenge and upholding a § 924(c)
conviction that rested on an § 846 conspiracy
conviction); Virgil Johnson, 2018 WL 2063993, at *3
(“As Defendant's § 924(c) conviction rests on
a drug trafficking crime and a crime of violence, he is not
entitled to relief [under Johnson].” (citing
Hare)); United States v. Pineda, ...