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Ham v. United States

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

May 21, 2019

Timothy Eugene Ham, Petitioner,
v.
United States of America, Respondent.

          ORDER

          R. Bryan Harwell United States District Judge.

         This matter is before the Court on Petitioner Timothy Eugene Ham's counseled motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. ECF No. 438. The Court denies the motion for the reasons herein.[1]

         Background

         In June, 2011, Petitioner pled guilty to two counts of using and carrying firearms during and in relation to, and possessing firearms in furtherance of, a crime of violence, and aiding and abetting the same, in violation of 18 U.S.C. §§ 924(c)(1)(A), and (2). ECF Nos. 2, 103, 112, 113. Each of the firearm counts referenced as the crime of violence a separate count of Hobbs Act robbery and aiding and abetting the same, in violation of 18 U.S.C. §§ 1951(a), and (2). ECF No. 2. In October, 2011, the Court sentenced Petitioner to an aggregate term of 384 months' imprisonment (84 months as to one count and 300 months as to the other count to run consecutively), followed by supervised release of five years. ECF No. 169. Judgment was entered on October 7, 2011. Id. Petitioner did not file a direct appeal or a prior § 2255 motion. In July, 2012, pursuant to a motion by the Government, the Court reduced Petitioner's custodial sentence to 252 months' imprisonment (84 months as to the first count, and 168 months as to the other count to run consecutively), with five years supervised release to follow. ECF Nos. 331, 345, 352.

         On June 20, 2016, Petitioner filed the instant counseled § 2255 motion. ECF No. 438. The Government filed a response in opposition and a motion for summary judgment, ECF Nos. 450, 451, and Petitioner filed a response in opposition to the Government's motion, ECF No. 458. Petitioner subsequently filed a supplement to his § 2255 motion. ECF Nos. 467, 471.

         Legal Standard

         A 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).

         The 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).

         “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 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).

         Discussion

         Petitioner challenges his § 924(c)convictions by arguing the Hobbs Act robberies which were the crimes of violence for the counts to which he pled guilty no longer constitute crimes of violence. ECF Nos. 438, 458, 467. Petitioner advances Hobbs Act robbery 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. Id. Thus, Petitioner contends he cannot be guilty of his § 924(c) crimes. Id. The Government contends Petitioner's claim fails on the merits. ECF Nos. 450, 451.

         “Federal 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 ...

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