United States District Court, D. South Carolina, Florence Division
Bryan Harwell, Chief United States District Judge.
matter is before the Court on Petitioner Michael Douglas
Vos's pro se motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255. ECF
No. 54. The Court denies the motion for the
January, 2003, Petitioner pled guilty pursuant to a written
plea agreement to: (1) one count of Hobbs Act robbery and
aiding and abetting the same, in violation of 18 U.S.C.
§§ 1951(a), and (2); (2) one count of using and
carrying a firearm during and in relation to, and possessing
a firearm in furtherance of, a crime of violence-here the
aforementioned Hobbs Act robbery, in violation of 18 U.S.C.
§ 924(c); (3) a second count of Hobbs Act robbery and
aiding and abetting the same, in violation of 18 U.S.C.
§§ 1951(a), and (2); and (4) being a felon in
possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1), and 924(a). ECF Nos. 1, 40, 44. In
June, 2003, the Court sentenced Petitioner to an aggregate
term of 300 months' imprisonment (120 months each for the
two Hobbs Act robberies and the felon in possession charge,
those terms to run concurrently, and 180 months for the
firearm in furtherance of a crime of violence charge, to run
consecutively to the other terms), followed by five
years' supervised release. ECF No. 52. Judgment was
entered on July 23, 2003. Id. Petitioner did not
file a direct appeal or a prior § 2255 motion.
January 23, 2019, Petitioner filed the instant § 2255
motion. ECF No. 54. The Government filed a response in
opposition and a motion for summary judgment, ECF Nos. 71,
72, to which Petitioner responded, ECF No. 75.
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 Thomas, 627 F.3d at 539. 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).
“When the district court denies § 2255 relief
without an evidentiary hearing, the nature of the court's
ruling is akin to a ruling on a motion for summary
judgment.” United States v. Poindexter, 492
F.3d 263, 267 (4th Cir. 2007).
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see Rule 12, Rules Governing
Section 2255 Proceedings (“The Federal Rules of Civil
Procedure . . ., to the extent that they are not inconsistent
with any statutory provisions or these rules, may be applied
to a proceeding under these rules.”). “A party
asserting that a fact cannot be or is genuinely disputed must
support the assertion by: (A) citing to particular parts of
materials in the record . . .; or (B) showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
56(c)(1). “The evidence must be viewed in the light
most favorable to the non-moving party, with all reasonable
inferences drawn in that party's favor. The court
therefore cannot weigh the evidence or make credibility
determinations.” Reyazuddin v. Montgomery
Cty., 789 F.3d 407, 413 (4th Cir. 2015) (internal
citation and quotation marks omitted).
challenges his § 924(c) conviction by arguing the
underlying Hobbs Act robbery and aiding and abetting the same
to which he pled guilty is categorically not a crime of
violence under § 924(c)'s force clause, and
Johnson v. United States, 135 S.Ct. 2551 (2015), and
Sessions v. Dimaya, 138 S.Ct. 1204 (2018), render
§ 924(c)'s residual clause unconstitutionally vague.
ECF Nos. 54, 75. Accordingly, Petitioner avers, he cannot be
guilty of a § 924(c) crime. Id. The Government
contends Petitioner's claim is untimely and fails on the
merits. ECF Nos 71, 72.
preliminary matter, to the extent Petitioner argues he only
aided and abetted Hobbs Act robbery, and aiding and abetting
is not a crime of violence, that argument fails for two
reasons. First, Petitioner pled guilty to the substantive
Hobbs Act robbery and aiding and abetting the same. ECF Nos.
1, 40, 44. Second, an aider or abettor “is punishable
as a principal.” 18 U.S.C. § 2(a). “Under
§ 2, the acts of the principal become those of the aider
and abettor as a matter of law.” United States v.
Williams, 334 F.3d 1228, 1232 (11th Cir. 2003).
“[N]othing in the language of § 924(c)(1)
indicat[es] that Congress intended to vitiate ordinary
principles of aiding and abetting liability for the purposes
of sentencing under that subsection.” Id. at
1233. Accordingly, even if Petitioner only aided and abetted
the underlying Hobbs Act robbery, he is still liable for the
substantive Hobbs Act robbery.
law, as codified at 18 U.S.C. § 924(c)(1)(A), provides
that a person who uses or carries a firearm “during and
in relation to any crime of violence” or who
“possesses a firearm” “in furtherance of
any such crime” may be convicted of both the underlying
crime (here, Hobbs Act [robbery]) and the additional,
distinct crime of utilizing a firearm in connection with a
“crime of violence, ” with the latter punishable
by at least five consecutive years of imprisonment.”
United States v. Simms, 914 F.3d 229, 233 (4th Cir.
2019) (en banc). Section 924(c)(3) defines “the term
‘crime of violence'” as “an offense
that is a felony” and:
(A) has as an element the use, attempted
use, or threatened use of physical force against the person