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Hughes v. United States

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

August 5, 2019

Frederick Eugene Hughes, Petitioner,
v.
United States of America, Respondent.

          ORDER

          R. BRYAN HARWELL UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Petitioner's [ECF No. 501] 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 Petitioner, through counsel, moves to vacate his sentence arguing that his conviction under 18 U.S.C. § 924(c) is no longer valid following Johnson v. United States, 135 S.Ct. 2551 (2015) and Welch v. United States, 136 S.Ct. 1257 (2016).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 Welch.

         On June 20, 2019, the government filed a response and motion for summary judgment [ECF No. 559] 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 prejudice.[1]

         Procedural History

         On March 27, 2007, Petitioner was indicted, along with several co-defendants, in an fourteen count indictment. Petitioner was named as a defendant in counts 3-5 and 10-12. Counts 3-5 alleged Hobbs Act robberies in violation of 18 U.S.C. § 1951(a). Counts 10-12 alleged that Petitioner used or carried a firearm during the crimes of violence alleged in counts 3-5 in violation of 18 U.S.C. § 924(c).

         On November 30, 2007, Petitioner pled guilty to counts 11 and 12 (§ 924(c) counts). The presentence investigation report (“PSR”) prepared by the U.S. Probation Office determined that, as to count 11, Petitioner's minimum term of imprisonment was 7 years consecutive. As to count 12, the minimum term was 25 years consecutive.

         On April 23, 2008, Petitioner was sentenced to 7 years consecutive as to count 11 and 25 years consecutive as to count 12, for a total aggregate sentence of 32 years. The judgment was filed on May 2, 2008.

         Petitioner timely appealed and in an opinion dated December 16, 2008, the Fourth Circuit Court of Appeals affirmed Petitioner's conviction and sentence. The Mandate and Judgment were entered on January 7, 2009.

         Petitioner filed the instant motion to vacate pursuant to 28 U.S.C. § 2255 on June 30, 2016.

         Applicable Law

         Prisoners 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).

         Nonconstitutional 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).

         A 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 434 (1986).

         Legal Standard for ...


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