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McClair v. United States

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

June 4, 2019

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 Petitioner, through counsel, moves to vacate his sentence arguing that his conviction under 18 U.S.C. § 924(c) is no longer valid following Johnson v. United States, 135 S.Ct. 2551 (2015) and Welch v. United States, 136 S.Ct. 1257 (2016).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

         On June 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 prejudice.[1]

         Procedural History

         On 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).

         On June 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.

         On 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.

         Petitioner did not pursue a direct appeal.

         On July 30, 2012, Petitioner's sentence was reduced pursuant to Rule 35(b) to a total aggregate sentence of 300 months.

         Petitioner, through counsel, filed the instant motion to vacate pursuant to 28 U.S.C. § 2255 on June 20, 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 ...


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