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Brinson v. United States

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

October 19, 2018

Robert Kenneth Brinson, Petitioner,
v.
United States of America, Respondent.

          ORDER AND OPINION

         This matter is before the court on Petitioner's Motion to Vacate under 28 U.S.C. § 2255. (ECF No. 66.) Petitioner seeks relief from his sentence under United States v. Johnson, 135 S.Ct. 2551 (2015). (Id. at 2.) For the reasons stated below, the court DENIES Petitioner's Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 66) and GRANTS Respondent's Motion to Dismiss (ECF No. 72).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On August 5, 1992, Petitioner was indicted for armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d) and 18 U.S.C. § 924(c). (ECF No. 1.) On June 15, 1993, Petitioner and the Government entered into a plea agreement by which Petitioner agreed to plead guilty to all charges in the Indictment. (ECF No. 52.) On October 1, 1993, Petitioner was sentenced to a total of 207 months of incarceration and seven (7) years of supervised release for the combined counts. (Id.) Petitioner filed a Motion to Correct Sentence which was denied. (ECF Nos. 42, 48.) Petitioner did not appeal his conviction and sentence. On June 27, 2016, Petitioner filed a pro se Motion to Vacate under 28 U.S.C. § 2255.[1] (ECF No. 66). On July 26, 2016, Respondent filed a Response to Petitioner's Motion and a Motion to Dismiss. (ECF Nos. 71, 72.) On July 26, 2016, a Roseboro order was sent to Petitioner explaining summary judgment and directing Petitioner to respond in 34 days. (ECF No. 73.) On March 17, 2017, Petitioner filed a Response in Opposition to Respondent's Motion to Dismiss (ECF No. 72). (ECF No. 75.)

         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. § 2255(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).

         Because Petitioner is a pro se litigant, the court is required to liberally construe his arguments. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro se plaintiff's “inartful pleadings” may be sufficient enough to provide the opportunity to offer supporting evidence.).

         III. ANALYSIS

         Petitioner asserts that “[i]n light of [Johnson], [his] conviction and sentence for violation of 18 U.S.C. § 924(c) are unconstitutional and should be vacated.” (ECF No. 66 at 3.) Petitioner also asserts that “as the Supreme Court has invalidated the residual clause of 18 U.S.C. § 924(e) as unconstitutional, the residual clause of 18 U.S.C. § 924(c) is likewise analogously void as a consequence. Therefore the underlying predicate offense can no longer be classified as a ‘crime of violence.'” (Id. at 4.) Petitioner argues that his conviction for possessing a firearm is not a crime of violence because it lacks the requisite force element. (Id. at 2-3.) Petitioner ultimately asserts that his conviction and sentence under 18 U.S.C. § 924(c) are unconstitutional. (Id. at 4.) Finally, Petitioner asserts that his Motion is timely filed because it has been filed within one year of Johnson being decided.[2] (Id. at 4.)

         The Court observes that it is unable to tell from the Case Management/Electronic Case File System whether Petitioner was sentenced according to the Armed Career Criminal Act (“ACCA”) or the United States Sentencing Guidelines (“USSG”). However, under either guideline, Petitioner's argument that his conviction and sentence was unconstitutional fails.

         A. The Armed Criminal Career Act (“ACCA”)

         In Johnson v. United States, the United States Supreme Court held that the residual clause of the ACCA was unconstitutionally vague in violation of the Fifth Amendment Due Process Clause. 135 S.Ct. at 2563. The residual clause states that a violent felony could include “[crimes that involve] conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Johnson was decided on June 26, 2015, and presented a new right for people who were sentenced to a mandatory minimum sentence of fifteen (15) years when a court utilized 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).

         The Fourth Circuit addressed whether a bank robbery conviction under 18 U.S.C. § 2113(a) qualifies as a crime of violence under the force clause of 18 U.S.C. § 924(c)(3). McNeal v. United States, 818 F.3d 141, 152 (4th Cir. 2016). The petitioners had been convicted for bank robbery under 18 U.S.C. § 2113(a) and relied on the holding in Johnson to assert that the trial court erred in concluding that an armed bank robbery qualifies as a crime of violence within the meaning of 18 U.S.C. § 924(c)(3). Id. at 154. The Fourth Circuit held that “a bank robbery under 18 U.S.C. § 2113(a) is a ‘crime of violence' within the meaning of the force clause of 18 U.S.C. § 924(c)(3), because it ‘has as an element the use, attempted use, or threatened use of physical force'-specifically, the taking or attempted taking of property ‘by force and violence, or by intimidation.' Because bank robbery is a lesser-included offense of § 2113(d) armed bank robbery, armed bank robbery is also a crime of violence under the force clause.” Id. at 157. Thus, petitioners convicted of federal bank robbery sentenced under the ACCA cannot utilize the holding in Johnson to collaterally attack their sentences under 28 U.S.C. § 2255. Id.

         Petitioner makes the same argument as the petitioners in McNeal as he relies on the holding in Johnson to assert that the district court erred in holding that his armed bank robbery conviction qualified as a crime of violence under 18 U.S.C. § 924(c)(3). (ECF No. 66.) Under McNeal, Petitioner's conviction for an armed bank robbery under 18 U.S.C. § 2113(a) is a crime of violence. Therefore, if Petitioner was sentenced ...


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