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Whitfield v. United States

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

June 4, 2019

Braheen Timothy Earl Whitfield, 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. 154] 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 Petitioner, through counsel, moves to vacate his sentence arguing that his conviction under 18 U.S.C. § 924(c) is no longer valid following Johnson v. United States, 135 S.Ct. 2551 (2015) and Welch v. United States, 136 S.Ct. 1257 (2016).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 Welch.

         On July 8, 2016, the government filed a response and motion for summary judgment [ECF Nos. 164, 165] arguing 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.[1]

         Procedural History

         On November 15, 2005, Petitioner was indicted, along with a co-defendant, in an six count indictment. A superseding indictment was filed on February 28, 2007, naming Petitioner in seven counts. Count 1 alleged car jacking in violation of 18 U.S.C. § 2119(1), Count 2 alleged that Petitioner used or carried a firearm during the crime of violence alleged in count 1 in violation of 18 U.S.C. § 924(c). Count 3 alleged a Hobbs Act robbery of a Super 8 motel in violation of 18 U.S.C. § 1951(a). Count 4 alleged that Petitioner used or carried a firearm during the crime of violence alleged in count 3 in violation of 18 U.S.C. § 924(c). Count 5 alleged a Hobbs Act robbery of a Quality Inn hotel in violation of 18 U.S.C. § 1951(a). Count 6 alleged that Petitioner used or carried a firearm during the crime of violence alleged in count 5 in violation of 18 U.S.C. § 924(c). Count 7 alleged a conspiracy to use and carry a firearm during a crime of violence in violation of 18 U.S.C. § 924(o).

         On March 5, 2007, Petitioner pled guilty to counts 3, 4, and 5 of the superseding indictment pursuant to a Rule 11(c)(1)(C) plea agreement, which provided for a sentence of 29 years (348 months) in prison. The presentence investigation report (“PSR”) prepared by the U.S. Probation Office determined that Petitioner's advisory guideline range was 360 months to Life in prison.

         On May 22, 2007, Petitioner was sentenced to 29 years in prison. The judgment was filed on May 29, 2007. Petitioner did not pursue a direct appeal.

         Petitioner, through counsel, filed the instant motion to vacate pursuant to 28 U.S.C. § 2255 on June 17, 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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