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Edwards v. United States

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

May 28, 2019

Tonto Edwards, Petitioner,
v.
United States of America, Respondent.

          ORDER

          R. BRYAN HARWELL, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Petitioner's [ECF No. 90] motion to vacate pursuant to 28 U.S.C. § 2255. Petitioner moves to vacate his sentence arguing that he is no longer a career offender under the U.S. Sentencing Guidelines because his prior conviction for South Carolina common law robbery is no longer a violent felony following Johnson v. United States, 135 S.Ct. 2551 (2015). Petitioner, through counsel, also moves to amend his original § 2255 motion to include a claim 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 Welch v. United States, 136 S.Ct. 1257 (2016).

         On June 3, 2016, the government filed a response and motion for summary judgment [ECF Nos. 94, 95]. On July 12, 2016, the government filed a response in opposition to Petitioner's motion to amend. For the reasons stated below, the Court denies Petitioner's motion to amend as futile, grants Respondent's Motion for Summary Judgment, dismisses Petitioner's Motion to Vacate, and dismisses this case with prejudice.[1]

         Procedural History

         On December 15, 2009, Petitioner was indicted in a three count indictment. Count 1 alleged a Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) that occurred on August 11, 2009. Count 2 alleged the Petitioner used or carried a firearm during the Hobbs Act robbery alleged in count 1 in violation of 18 U.S.C. § 924(c). Count 3 alleged that Petitioner was a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

         On May 5, 2010, Petitioner pled guilty to counts 1 and 2. The presentence investigation report (“PSR”) prepared by the U.S. Probation Office determined that Petitioner was a career offender pursuant to U.S.S.G. § 4B1.1 and his advisory guideline range was 262 to 327 months imprisonment.

         On September 22, 2010, Petitioner was sentenced to a term of 240 months, consisting of 156 months as to count one and 84 months (consecutive) as to count 2. The judgment was filed on September 24, 2010. Petitioner did not pursue a direct appeal.

         The instant motion to vacate pursuant to 28 U.S.C. § 2255 was filed on May 31, 2016.

         Applicable Law

         Prisoners 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).

         Nonconstitutional claims may be brought pursuant to § 2255, but will not provide a basis for collateral attack unless the error involves a “fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct., 2235, 2240 (1979); United States v. Morrow, 914 F.2d 608, 613 (4th Cir. 1990).

         A petitioner cannot ordinarily bring a collateral attack on the basis of issues litigated on direct appeal. United States v. Dyess, 730 F.3d 354, 360 (4th Cir. 2013) (stating petitioner “cannot ‘circumvent a proper ruling . . . on direct appeal by re-raising the same challenge in a § 2255 motion'”); United States v. Linder, 552 F.3d 391, 396 (4th Cir. 2009); Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir.), cert denied, 429 U.S. 863, 97 S.Ct. 169 (1976). An exception occurs where there has been an intervening change in the law. Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 2302 (1974). Additionally, where a defendant could have raised a claim on direct appeal but fails to do so, the claim may only be raised in a federal habeas proceeding if the defendant can show both cause for and actual prejudice from the default, see Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), or that she is actually innocent, see Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986).

         Legal Standard for Summary Judgment

         Summary 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 ...


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