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Blakeney v. United States

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

July 13, 2018

Charles Edward Blakeney, Petitioner,
v.
United States of America, Respondent.

          ORDER

          R. Bryan Harwell United States District Judge.

         This 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 herein.[1]

         Background

         In 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.

         On June 18, 2016, [2] Petitioner filed the instant § 2255 motion.[3] 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, [4] Petitioner filed a response in opposition to the Government's motion for summary judgment. See ECF No. 88.

         Legal Standard

         Prisoners 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).

         “When 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 omitted).

         Discussion

         Petitioner 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.

         “Section 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. § 924(c)(2).

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).

         Here, 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, ...


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