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. 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no longer valid following Johnson v. United States,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
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
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).
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.
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.
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).
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).
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
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 ...