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. 440]
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no longer valid following Johnson v. United States,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
30, 2016, the government filed a response and motion for
summary judgment [ECF Nos. 450, 451] 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
January 25, 2011, Petitioner was indicted, along with several
co-defendants, in an eighteen count indictment. Petitioner
was named as a defendant in counts 1-5, 8-13, and 16-17.
Count 1 alleged conspiracy to commit Hobbs Act robbery in
violation of 18 U.S.C. § 1951(a). Counts 2-5 and 8-9
alleged Hobbs Act robberies in violation of 18 U.S.C. §
1951(a). Counts 10-13 and 16-17 alleged that Petitioner used
or carried a firearm during the crimes of violence alleged in
counts 2-5 and 8-9 in violation of 18 U.S.C. § 924(c).
7, 2011, Petitioner pled guilty to Counts 10 and 11 (§
924(c) counts). The presentence investigation report
(“PSR”) prepared by the U.S. Probation Office
determined that, as to count 10, Petitioner's minimum
term of imprisonment was 7 years consecutive. As to count 11,
the minimum term was 25 years consecutive.
September 28, 2011, Petitioner was sentenced to 7 years
consecutive as to count 10 and 25 years consecutive as to
count 11, for a total aggregate sentence of 32 years (384
months). The judgment was filed on October 7, 2011.
did not pursue a direct appeal.
30, 2012, Petitioner's sentence was reduced pursuant to
Rule 35(b) to a total aggregate sentence of 300 months.
through counsel, filed the instant motion to vacate pursuant
to 28 U.S.C. § 2255 on June 20, 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