United States District Court, D. South Carolina, Florence Division
Bryan Harwell, United States District Judge
matter is before the Court on Petitioner Johnny Bethea,
Jr.'s counseled motion to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255. ECF Nos. 188,
189. The Court denies the motion for the reasons
February, 2009, Petitioner pled guilty pursuant to a written
plea agreement to: (1) one count of Hobbs Act robbery and
aiding and abetting the same, in violation of 18 U.S.C.
§§ 1951(a), and (2); and (2) one count of using and
carrying firearms during and in relation to, and possessing
firearms in furtherance of, a crime of violence-namely, the
Hobbs Act robbery-and aiding and abetting the same, in
violation of 18 U.S.C. §§ 924(c), and (2).
See ECF Nos. 66, 94, 96, 98. In June, 2009, the
Court sentenced Petitioner to an aggregate term of 166
months' imprisonment (46 months for the Hobbs Act robbery
and 120 months for the § 924(c) offense, to run
consecutively), followed by five years' supervised
release. ECF No. 131. Judgment was entered on June 17, 2009.
Id. Petitioner did not file a direct appeal or a
prior Â§ 2255 motion. In July, 2012, pursuant to a motion by
the Government, the Court reduced Petitioner's custodial
sentence to 116 months' imprisonment (6 months as to the
Hobbs Act robbery, and 110 months as to the Â§ 924(c) count,
to run consecutively), with five years supervised release to
follow. ECF No. 160.
24, 2016, Petitioner filed the instant § 2255 motion.
ECF Nos. 188, 189. The Government filed a response in
opposition and a motion for summary judgment, ECF Nos. 191,
192, to which Petitioner responded, ECF No. 194. Petitioner
thereafter filed a supplemental response. ECF No. 195.
prisoner in federal custody may attack the validity of his
sentence pursuant to 28 U.S.C. § 2255 by filing a motion
in the court that imposed the sentence. For a court to
vacate, set aside, or correct a sentence, a petitioner must
prove one of the following occurred: (1) the sentence was
imposed in violation of the Constitution or laws of the
United States; (2) the court lacked jurisdiction to impose
the sentence; (3) the sentence exceeded the maximum
authorized by law; or (4) the sentence is otherwise subject
to collateral attack. 28 U.S.C. § 2255(a).
district court 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 Thomas, 627 F.3d at 539. 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).
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 Rule 12, Rules Governing
Section 2255 Proceedings (“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).
Petitioner challenges his § 924(c) conviction by arguing
the Hobbs Act robbery to which he pled guilty is
categorically not a crime of violence under §
924(c)'s force clause, and Johnson v. United
States, 135 S.Ct. 2551 (2015), renders §
924(c)'s residual clause unconstitutionally vague. ECF
Nos. 188, 189, 195. Accordingly, Petitioner avers, he cannot
be guilty of a § 924(c) crime. Id. The
Government contends Petitioner's claim is untimely and
fails on the merits. ECF Nos. 191, 192.
law, as codified at 18 U.S.C. § 924(c)(1)(A), provides
that a person who uses or carries a firearm “during and
in relation to any crime of violence” or who
“possesses a firearm” “in furtherance of
any such crime” may be convicted of both the underlying
crime (here, Hobbs Act [robbery]) and the additional,
distinct crime of utilizing a firearm in connection with a
“crime of violence, ” with the latter punishable
by at least five consecutive years of imprisonment.”
United States v. Simms, 914 F.3d 229, 233 (4th Cir.
2019) (en banc). Section 924(c)(3) defines “the term
‘crime of violence'” as “an offense
that is a felony” and:
(A) has as an element the use, attempted
use, or threatened use of physical force against the person
or property of another, or
(B) 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 ...