United States District Court, D. South Carolina, Charleston Division
Margaret B. Seymour Senior United States District Judge
George Aden Brown is an inmate in custody of the Bureau of
Prisons. He seeks to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255.
1999, Movant pleaded guilty before the Honorable Patrick
Michael Duffy to five charges: two counts of Hobbs Act
robbery, see 18 U.S.C. § 1951(a) (Counts 1 and
4); two counts of use of a firearm during and in relation to
those robberies, see 18 U.S.C. § 924(c) (Counts
2 and 5); and one count of possession of a firearm after a
felony conviction, see 18 U.S.C. § 922(g)
(Count 3). Movant's criminal history included two
convictions in North Carolina for robbery with a dangerous
weapon and three convictions in South Carolina for strong arm
robbery. Based on that criminal history, Movant was subject
to a fifteen-year mandatory minimum sentence on his
felon-in-possession charge under the Armed Career Criminal
Act (“ACCA”). See 18 U.S.C. §
924(e)(1). Movant was also deemed a career offender under the
United States Sentencing Guidelines as a result of his
criminal history. See U.S.S.G. § 4A1.1(a).
Finally, because Movant's two Hobbs Act robberies
constituted “crime[s] of violence” under §
924(c), he faced an additional mandatory prison term for each
of his § 924(c) charges. Judge Duffy sentenced Movant to
622 months in prison-262 months for Count 3; 240 months each
as to Counts 1 and 4, to be served concurrently with the
sentence on Count 3; 60 consecutive months on Count 2; and
300 consecutive months on Count 5.
2001, Movant filed a § 2255 motion asserting several
constitutional violations. The court rejected most of his
arguments but found merit to his claim that his 300-month
sentence on Count 5 violated the Constitution's Ex Post
Facto clause. Accordingly, on August 22, 2002, Judge Duffy
reduced his sentence on that charge to 240 months. ECF No.
26. Movant appealed; the Fourth Circuit dismissed the appeal.
Brown v. United States, 65 Fed.Appx. 467 (4th Cir.
2003) (per curiam).
authorization by the Fourth Circuit, see In re
Brown, No. 16-902 (4th Cir. June 6, 2016), Movant filed
the pending § 2255 motion on June 27, 2016. ECF No. 31.
In the motion, Movant argues that the sentences for his two
§ 924(c) convictions are unconstitutional under
Johnson v. United States, 135 S.Ct. 2551 (2015). The
Government responded by filing a motion to dismiss, ECF No.
35, and Movant replied by amending his § 2255 motion to
add challenges to his ACCA enhancement and to his
career-offender designation, ECF No. 42. In an order issued
November 30, 2016, Judge Duffy determined that Movant's
challenges to the ACCA enhancement and career-offender
designation were without merit because his robbery
convictions count as predicate violent felonies under ACCA
and predicate crimes of violence under the Sentencing
Guidelines. ECF No. 43 at 4, 6. With respect to Movant's
arguments regarding the sentences for his two § 924(c)
convictions, Judge Duffy noted that the same issues were
before the Fourth Circuit in the matters of United States
v. Simms, No. 15-4640 (4th Cir. filed Oct. 23, 2015)
(considering whether § 924(c)(3)(B) is
unconstitutionally vague) and United States v. Ali,
No. 15-4433 (4th Cir. filed July 10, 2015) (considering
whether Hobbs Act robbery is a crime of violence for the
purpose of § 924(c)(3)(A)). Accordingly, Judge Duffy
stayed proceedings on that portion of the § 2255 motion
pending the Fourth Circuit's decision in the two cases.
Id. at 7. This case was reassigned to the
undersigned on October 4, 2018.
Fourth Circuit decided Simms on January 24, 2019.
United States v. Simms, 914 F.3d 229 (4th Cir.
2019). On February 11, 2019, the Fourth Circuit placed in
abeyance Ali pending a decision by the Supreme Court
in United States v. Davis, 139 S.Ct. 2319 (2019).
Ali, No. 15-4433, ECF No. 112 (4th Cir. Feb. 11,
2019). On June 24, 2019, the Supreme Court decided
Davis. 139 S.Ct. at 2319. The court finds that the
matter is ripe for disposition. For the reasons discussed
below, the motion to dismiss is granted and the § 2255
motion is denied.
federal prisoner in custody may challenge the fact or length
of his detention by filing a motion pursuant to 28 U.S.C.
§ 2255. To receive relief under § 2255, a movant is
required to prove by a preponderance of the evidence that his
sentence was imposed in violation of the Constitution or laws
of the United States; or that the court was without
jurisdiction to impose such sentence; or that the sentence
was in excess of the maximum authorized by law; or is
otherwise subject to collateral attack. 28 U.S.C. §
2255(a). If this showing is made, the court must
“vacate and set the judgment aside” and
“discharge the prisoner or resentence him or grant a
new trial to correct the sentence as may appear
appropriate.” Id. at § 2255(b). If, on
the other hand, “the motion and the files and records
of the case conclusively show that the prisoner is entitled
to no relief, ” the court may summarily deny the
petition without holding a hearing. 28 U.S.C. § 2255(b)
(providing that a hearing is not required on a § 2255
motion if the record of the case conclusively shows that a
movant is entitled to no relief); see Rule 4(b),
Rules Governing Section 2255 Proceedings. Generally, when a
movant attacks his sentence based upon errors that could have
been but were not pursued on direct appeal, the movant must
show cause and actual prejudice resulting from the errors of
which he complains or he must demonstrate that a miscarriage
of justice would result from the refusal of the court to
entertain the collateral attack. See United States v.
Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999)
(citing United States v. Frady, 456 U.S. 152, 167-68
(1982)); United States v. Maybeck, 23 F.3d 888,
891-92 (4th Cir. 1994).
movant must file a § 2255 motion one year from the
latest of: 1) the date on which a judgment of conviction
becomes final; 2) the date on which an impediment to making a
motion created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
defendant was prevented from making a motion by such
governmental action; 3) the date on which a right asserted
was initially recognized by the Supreme Court, if that right
has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or 4)
the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of
due diligence. 28 U.S.C. § 2255(f). A judgment of
conviction becomes final when the time for seeking review
expires. Clay v. United States, 537 U.S. 522, 525
seeks a correction of his sentence on the basis that the
Supreme Court has newly recognized a right and made that
right retroactively applicable to cases on collateral review.
In Johnson, the Supreme Court addressed the
ACCA's mandate that imposes an enhanced sentence for an
offender convicted of being a felon in possession of a
firearm if the offender has three or more convictions for a