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Vos v. United States

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

July 2, 2019

Michael Douglas Vos, Petitioner,
v.
United States of America, Respondent.

          ORDER

          R. Bryan Harwell, Chief United States District Judge.

         This 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.[1] The Court denies the motion for the reasons herein.[2]

         Background

         In 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.

         On 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.[3]

         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 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).

         “The 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).

         Discussion

         Petitioner 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.[4] Id. The Government contends Petitioner's claim is untimely and fails on the merits. ECF Nos 71, 72.

         As a 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.

         “Federal 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 or ...

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