United States District Court, D. South Carolina, Florence Division
Bryan Harwell United States District Judge.
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.
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).
24, 2016,  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,  and Petitioner's instant § 2255
motion was docketed the same day. 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.
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).
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.
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). “[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).
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.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 § 924(c) and (j) conviction remains
valid because it rests on the drug trafficking crimes charged