United States District Court, D. South Carolina, Spartanburg Division
OPINION AND ORDER
Margaret B. Seymour Senior United States District Judge
Ernest Lee Rogers, Jr. is an inmate in custody of the Bureau
of Prisons. He seeks to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255.
March 27, 2002, a federal grand jury returned a three-count
indictment, charging Movant with carjacking, in violation of
18 U.S.C. §§ 2, 2119 (Count 1); use of a firearm
during a crime of violence, in violation of 18 U.S.C.
§§ 2, 924(c)(1)(A)(ii) (Count 2); and conspiracy to
use a firearm during a crime of violence, in violation of 18
U.S.C. § 924(o) (Count 3). On September 25, 2002, a jury
convicted Movant of all three counts. ECF No. 59.
presentence investigation report (PSR) was prepared by the
United States Probation Office (USPO). The PSR noted that,
among other offenses, Movant has state court convictions for
strong armed robbery and burglary. Movant's criminal
history score was eighteen, to which two points were added
because Movant committed the underlying federal offenses less
than two years following his release from custody of the
South Carolina Department of Corrections for a sentence
imposed for possession of a stolen vehicle. A criminal
history score of twenty results in a criminal history
category of VI; and, Movant's criminal history category
was deemed to be VI because he has two prior felony
convictions involving a crime of violence. See
U.S.S.G. § 4B1.1.
advised that when one of the counts embodies conduct that is
treated as a specific offense characteristic in, or other
adjustment to, the guideline applicable to another of the
counts, the two counts shall be grouped together into a
single group. See U.S.S.G. § 3D1.2(c). The PSR
explained that because conspiring to brandish a firearm
during a crime of violence is a specific offense
characteristic of the carjacking, the two counts would be
grouped together. Under U.S.S.G. § 3D1.3(a), in the case
of counts grouped together pursuant to U.S.S.G. §
3D1.2(a)-(c), the offense level applicable to a group is the
offense level used for the most serious of the counts
comprising the group, determined in accordance with Chapter 2
and Parts A, B, and C of Chapter 3.
the statutory provisions, the maximum term of imprisonment
for Count One is fifteen years. 18 U.S.C. § 2119. The
maximum term of imprisonment for Count Two is seven years, to
run consecutively to any other sentence imposed. 18 U.S.C.
§ 924(c)(1). The maximum term of imprisonment for Count
Three is twenty years. 18 U.S.C. § 924(o). Application
of the career offender enhancement under the Sentencing
Guidelines caused Movant's base offense level to increase
from 23 to 29, and, with a criminal history category of VI,
Movant's guidelines range for imprisonment was 151 to 188
months. The PSR advised that with respect to Count Two, the
Sentencing Guidelines defer to the statutory requirement,
which is a seven-year consecutive sentence.
November 25, 2002, the court sentenced Movant to
incarceration for a period of 272 months, which consisted of
188 months as to Count One and Three, to be served
concurrently, and seven years as to Count Two, to run
consecutive to the terms imposed in Counts One and Three. The
court also sentenced Movant to five years' supervised
release. The court entered judgment on November 26, 2002, ECF
No. 66, and the Court of Appeals for the Fourth Circuit
affirmed. United States v. Rogers, 67 Fed.Appx. 830
(4th Cir. 2003). Movant subsequently initiated 28 U.S.C.
§ 2255 proceedings and filed motions to dismiss the
indictment, to inspect the list of grand juror names and to
dismiss for selective prosecution or, in the alternative,
convene a federal grand jury and disclose grand jury
transcripts, which the court denied. Movant appealed the
decision, and the Fourth Circuit dismissed the appeal.
United States v. Rogers, 441 Fed.Appx. 153 (4th Cir.
authorization by the Fourth Circuit, ECF No. 125, Movant
filed a successive § 2255 motion on June 27, 2016. ECF
No. 126. In the motion, Movant seeks the benefit of
Johnson v. United States, 576 U.S. ----, 135 S.Ct.
2551 (2015), in which the Supreme Court held that the
“residual clause” of the Armed Career Criminal
Act is unconstitutionally vague. He argues that
Johnson applies with equal force to the United
States Sentencing Guidelines under which he was sentenced,
and that neither of his prior convictions for robbery or
burglary qualify as a predicate offense under the
“residual clause” of U.S.S.G. § 4B1.2(a)(2).
8, 2016, the Government filed a motion to stay the matter
pending a ruling in Beckles v. United States, 580
U.S. ----, 137 S.Ct. 886, 890 (2017). ECF No. 128. The court
granted the motion and stayed briefing on the § 2255
motion. ECF No. 129. On May 15, 2017, Movant filed a
supplemental motion to vacate or correct pursuant to 28
U.S.C. § 2255. ECF No. 131. The Supreme Court issued a
decision in Beckles on March 6, 2017; however, on
August 16, 2017, the court issued an order advising the
parties that it would maintain the stay pending a decision by
the Fourth Circuit in United States v. Brown, 868
F.3d 297, 302 (4th Cir. 2017). ECF No. 132. The Fourth
Circuit issued a decision in Brown on August 21,
2017, and this court lifted the stay on January 29, 2018. ECF
No. 133. On February 28, 2018, the Government filed a
combined response to the § 2255 motion and a motion for
summary judgment and memorandum in support thereof. ECF Nos.
135, 136. On March 8, 2018, Movant filed an unopposed motion
asking the court to stay the matter pending the filing and
resolution of a petition for writ of certiorari in
Brown. ECF No. 137. On October 15, 2018, the
Supreme Court denied the petition for writ of certiorari.
Brown v. United States, --- S.Ct. ----, 2018 WL
2877128 (Oct. 15, 2018). The court thereafter denied
Movant's motion to stay, and ordered him to submit
additional information, if he chose, within ten days. ECF No.
139. For the reasons discussed below, the motion for summary
judgment is granted and the § 2255 motion is denied.
federal prisoner in custody may challenge the fact or length
of his detention by filing a motion pursuant to 28 U.S.C.
§ 2255. To receive relief under § 2255, a movant is
required to prove by a preponderance of the evidence that his
sentence was imposed in violation of the Constitution or laws
of the United States; or that the court was without
jurisdiction to impose such sentence; or that the sentence
was in excess of the maximum authorized by law; or is
otherwise subject to collateral attack. 28 U.S.C. §
2255(a). If this showing is made, the court must
“vacate and set the judgment aside” and
“discharge the prisoner or resentence him or grant a
new trial to correct the sentence as may appear
appropriate.” Id. at § 2255(b). If, on
the other hand, “the motion and the files and records
of the case conclusively show that the prisoner is entitled
to no relief, ” the court may summarily deny the
petition without holding a hearing. 28 U.S.C. § 2255(b)
(providing that a hearing is not required on a § 2255
motion if the record of the case conclusively shows that
petitioner is entitled to no relief); see Rule 4(b),
Rules Governing Section 2255 Proceedings. Generally, when a
movant attacks his sentence based upon errors that could have
been but were not pursued on direct appeal, the movant must
show cause and actual prejudice resulting from the errors of
which he complains or he must demonstrate that a miscarriage
of justice would result from the refusal of the court to
entertain the collateral attack. See United States v.
Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999)
(citing United States v. Frady, 456 U.S. 152, 167-68
(1982)); United States v. Maybeck, 23 F.3d 888,
891-92 (4th Cir. 1994).
movant must file a § 2255 motion one year from the
latest of: 1) the date on which a judgment of conviction
becomes final; 2) the date on which an impediment to making a
motion created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
defendant was prevented from making a motion by such
governmental action; 3) the date on which a right asserted
was initially recognized by the Supreme Court, if that right
has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or 4)
the date on which the facts supporting the claim or claims
presented could have been discovered through the ...