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Fripp v. United States

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

June 5, 2019

Gerome Fripp, Petitioner,
United States of America, Respondent.


          R. Bryan Harwell United States District Judge.

         This matter is before the Court on Petitioner Gerome Fripp's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. See ECF Nos. 233 & 239. The Government has filed a motion to dismiss. See ECF No. 248. The Court denies Petitioner's § 2255 motion and grants the Government's motion to dismiss for the reasons herein.[1]


          In December 2008, a federal grand jury returned a four-count superseding indictment charging Petitioner with violations of 21 U.S.C. § 846 (Count One), 18 U.S.C. §§ 2, 1951 (Count Two), 21 U.S.C. § 841 and 18 U.S.C. § 2 (Count Three), and 18 U.S.C. §§ 2, 924(c)(1)(A), (j) (Count Four). See ECF No. 95. Petitioner's charges stemmed from the shooting murder of Vincent Wilson (a drug dealer) in February 2005. In March 2009, Petitioner pled guilty pursuant to a written plea agreement to Count Four. See ECF Nos. 141-43, 166. In June 2009, the Court sentenced Petitioner to twenty-five years' imprisonment based upon the parties' stipulation in the plea agreement, see Fed. R. Crim. P. 11(c)(1)(c). See ECF Nos. 141, 151, 155, & 169. Judgment was entered on June 12, 2009. See ECF No. 155. Petitioner filed a direct appeal, and the Fourth Circuit affirmed in part and dismissed in part. See ECF Nos. 153 & 175; see also United States v. Fripp, No. 09-4541, 2010 WL 283043 (4th Cir. Jan. 25, 2010). In 2010, Petitioner filed a pro se § 2255 motion, which this Court dismissed with prejudice in 2011. See ECF Nos. 178, 218, & 219; see also Fripp v. United States, No. 4:08-cr-00275-RBH-1, 2011 WL 13224092 (D.S.C. Mar. 16, 2011), appeal dismissed, United States v. Fripp, 455 Fed.Appx. 358 (4th Cir. 2011), cert. denied, Fripp v. United States, 568 U.S. 874 (2012).

         On June 24, 2016, [2] Petitioner (proceeding pro se) filed a motion in the Fourth Circuit seeking authorization to file a second or successive § 2255 motion in light of Johnson v. United States, 135 S.Ct. 2551 (2015), as made retroactive by Welch v. United States, 136 S.Ct. 1257 (2016). See ECF No. 233; see also In re Fripp, No. 16-9739, at ECF No. 2 (4th Cir. docketed June 28, 2016). On July 7, 2016, the Fourth Circuit granted the motion, [3] and Petitioner's instant § 2255 motion was docketed the same day.[4] See ECF Nos. 232 & 233. The Government filed a response in opposition and a motion to dismiss. See ECF Nos. 247 & 248. Petitioner filed a response in opposition to the Government's motion, a motion requesting appointment of counsel, and supplemental briefing. See ECF Nos. 252, 254, & 255.

         Legal Standard

          A prisoner in federal custody may attack the validity of his sentence pursuant to 28 U.S.C. § 2255 by filing a motion in the court that imposed the sentence. For a court to vacate, set aside, or correct a sentence, a petitioner must prove one of the following occurred: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court lacked jurisdiction to impose the sentence; (3) the sentence exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a).

         The district court need not hold an evidentiary hearing on a § 2255 motion if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see United States v. Thomas, 627 F.3d 534, 538 (4th Cir. 2010). The determination of whether to hold an evidentiary hearing ordinarily is left to the sound discretion of the district court. Raines v. United States, 423 F.2d 526, 530 (4th Cir. 1970).


          Petitioner challenges his § 924(c) and (j) conviction in Count Four by arguing the Hobbs Act offense charged in Count Two (attempted robbery while engaged in drug trafficking) is not a predicate “crime of violence” in light of Johnson and Welch, supra. See ECF Nos. 233, 239, 252, & 255. The Government moves to dismiss Petitioner's § 2255 motion by arguing that it is untimely and that his § 924(c) and (j) conviction stands despite Johnson/Welch because it was premised upon both a drug trafficking crime and a crime of violence. See ECF Nos. 247 & 248.

         Section 924(c) prohibits using or carrying a firearm “during and in relation to any crime of violence or drug trafficking crime, ” or possessing a firearm “in furtherance of any such crime.” 18 U.S.C. § 924(c)(1)(A) (emphasis added).[5] “[T]he term ‘drug trafficking crime' means any felony punishable under the Controlled Substances Act (21 U.S.C. [§§] 801 et seq.) . . . .” 18 U.S.C. § 924(c)(2).

In Johnson, the Supreme Court held that the definition of “violent felony” found in the residual clause of the Armed Career Criminal Act is unconstitutionally vague. 135 S.Ct. at 2557. That clause defines a “violent felony” as any felony that “involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Section 924(c) similarly contains a residual clause that defines a “crime of violence” as any felony that “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3)(B).

United States v. Hare, 820 F.3d 93, 105 n.10 (4th Cir. 2016). The Fourth Circuit recently held the residual clause of § 924(c)(3)(B) is unconstitutionally vague. See United States v. Simms, 914 F.3d 229 (4th Cir. 2019) (en banc). However, “[t]he drug trafficking portion of § 924(c)(2) does not contain a residual clause, and states with particularity which charges will serve as underlying crimes for a § 924(c) conviction.” United States v. Virgil Johnson, No. 3:12-cr-00850-CMC-3, 2018 WL 2063993, at *3 (D.S.C. May 3, 2018) (same), appeal dismissed, 740 Fed.Appx. 301 (4th Cir. 2018).

         In this case, Petitioner's § 924(c) and (j) conviction was predicated on both “drug trafficking crimes and a crime of violence, ” as charged in Count Four. ECF No. 95 [Superseding Indictment] at p. 4 (emphasis added). During the plea colloquy, the Court reviewed the elements of the offense with Petitioner-the first element being that he “committed a drug-trafficking crime or crime of violence”-and Petitioner admitted to the elements of the offense. ECF No. 166 [Plea Transcript] at pp. 16-17 (emphasis added). The Government provided the factual basis for Petitioner's guilty plea, and this factual basis included both the Hobbs Act offense charged in Count Two and the drug trafficking crimes charged in Counts One and Three-namely, violations of 21 U.S.C. §§ 841 and 846.[6]Id. at pp. 26-30. Petitioner informed the Court that he agreed with the Government's factual summary, and the Court found his plea was “supported by an independent basis in fact containing each of the essential elements of the offense.” Id. at p. 30; see generally Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (“The representations of the defendant, his lawyer, and the prosecutor at [a plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings.”). Thus, even assuming arguendo that the Hobbs Act offense charged in Count Two is not a crime of violence, Petitioner's ยง 924(c) and (j) conviction remains valid because it rests on the drug trafficking crimes charged in ...

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