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. 682]
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no longer valid following Johnson v. United States,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. 684, 685] 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
28, 2009, Petitioner was indicted, along with several
co-defendants, in an sixteen count superseding indictment.
Petitioner was named as a defendant in counts 1-4, 6, 12-14,
January 7, 2010, Petitioner pled guilty pursuant to a Rule
11(c)(1)(C) plea agreement to count 3 (Hobbs Act robbery in
violation of 18 U.S.C. § 1951(a)) and count 4 (use of a
firearm during the crime of violence alleged in count 3 in
violation of 18 U.S.C. § 924(c)). Petitioner's Rule
11(c)(1)(C) plea agreement provided for a stipulated sentence
of 17 years.
11, 2010, Petitioner was sentenced to 17 years in prison
consistent with the terms of his plea agreement. The judgment
was filed on June 11, 2010. Petitioner timely appealed his
conviction and sentence, which was affirmed in part and
dismissed in part by the Fourth Circuit Court of Appeals on
August 11, 2011. The mandate and judgment were issued on
September 2, 2011.
through counsel, filed the instant motion to vacate pursuant
to 28 U.S.C. § 2255 on June 27, 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 ...