United States District Court, D. South Carolina, Florence Division
Bryan Harwell United States District Judge.
matter is before the Court on Petitioner's [ECF No. 435]
motion to vacate pursuant to 28 U.S.C. § 2255.
Petitioner, through counsel, moves to vacate his sentence
arguing that his conviction under 18 U.S.C. § 924(c) is
no longer valid following Johnson v. United States,
135 S.Ct. 2551 (2015) and Welch v. United States,
136 S.Ct. 1257 (2016). Petitioner's argument is premised
on the notion that Hobbs Act robbery under 18 U.S.C. §
1951 fails to qualify as a predicate crime of violence for a
§ 924(c) conviction post-Johnson and
23, 2016, the government filed a response and motion for
summary judgment [ECF Nos. 445, 446] arguing Petitioner's
motion to vacate is untimely and that Hobbs Act robbery
continues to qualify as a predicate crime of violence for a
conviction under 18 U.S.C. § 924(c). For the reasons
stated below, the Court grants Respondent's Motion for
Summary Judgment, dismisses Petitioner's Motion to
Vacate, and dismisses this case with prejudice.
January 25, 2011, Petitioner was indicted, along with several
co-defendants, in an eighteen count indictment. Petitioner
was named as a defendant in counts 1, 6-7, 14-15, and 18.
Count 1 alleged a conspiracy to commit Hobbs Act robbery in
violation of 18 U.S.C. § 1951(a). Counts 6-7 alleged
that Petitioner committed two Hobbs Act robberies in
violation of 18 U.S.C. § 1951(a) that occurred on June
25, 2010. Counts 14 - 15 alleged the Petitioner used or
carried a firearm during the Hobbs Act robberies alleged in
counts 6-7 in violation of 18 U.S.C. § 924(c). Count 18
alleged that Petitioner was a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1).
28, 2011, Petitioner pled guilty to Counts 6 and 14 pursuant
to a Rule 11(c)(1)(C) plea agreement that provided for a
stipulated sentence of 19 years. The plea agreement involved
the dismissal of counts 1, 7, 15, and 18. The presentence
investigation report (“PSR”) prepared by the U.S.
Probation Office determined that, as to count 6,
Petitioner's advisory guideline range was 30 to 37
months. As to count 14, which involved the discharge of a
firearm during a crime of violence in violation of 18 U.S.C.
§ 924(c), Petitioner's statutory mandatory minimum
sentence was 10 years.
October 14, 2011, Petitioner was sentenced to a term of 228
months or 19 years as provided in the Rule 11(c)(1)(C) plea
agreement. The judgment was filed on October 14, 2011.
Petitioner timely appealed his conviction and sentence, which
was affirmed by the Fourth Circuit Court of Appeals on June
12, 2012. The Mandate and Judgment were issued on July 5,
through counsel, filed the instant motion to vacate pursuant
to 28 U.S.C. § 2255 on June 17, 2016.
in federal custody may attack the validity of their sentences
pursuant to 28 U.S.C. § 2255. In order to move the court
to vacate, set aside, or correct a sentence under §
2255, a petitioner must prove that 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 writ of habeas corpus
and its federal counterpart, 28 U.S.C. § 2255,
‘will not be allowed to do service for an appeal.'
(internal citation omitted) For this reason,
nonconstitutional claims that could have been raised on
appeal, but were not, may not be asserted in collateral
proceedings. (internal citations omitted) Even those
nonconstitutional claims that could not have been asserted on
direct appeal can be raised on collateral review only if the
alleged error constituted ‘a fundamental defect which
inherently results in a complete miscarriage of
justice'”. Stone v. Powell, 428 U.S. 465,
n. 10 (1976); see also United States v. Boyd, No.
02-6242, 2002 WL 1932522, at *1 (4th Cir Aug. 22, 2002)
(“Non-constitutional claims that could have been raised
on direct appeal . . . may not be raised in a collateral
proceeding under § 2255.”).
Standard for Summary Judgment
judgment “should be rendered if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Fed.R.Civ.P. 56(c)(2) (2009). The
movant has the burden of proving that summary judgment is
appropriate. Once the movant makes the showing, however, the
opposing party must respond to the motion with "specific
facts showing a genuine issue for trial." Fed.R.Civ.P.
genuine issue of any material fact exists, summary judgment
is appropriate. See Shealy v. Winston, 929 F.2d
1009, 1011 (4th Cir. 1991). The facts and inferences to be
drawn from the evidence must be viewed in the light most
favorable to the non-moving party. Id. However,
"the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the
requirement is that there be no genuine issue of
material fact." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986).
the moving party has met [its] burden, the nonmoving party
must come forward with some evidence beyond the mere
allegations contained in the pleadings to show that there is
a genuine issue for trial." Baber v. Hospital Corp.
of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). The
nonmoving party may not rely on beliefs, conjecture,
speculation, or conclusory allegations to defeat a motion for
summary judgment. See Id. Rather, the nonmoving
party is required to submit evidence of specific facts by way
of affidavits, depositions, ...