United States District Court, D. South Carolina, Florence Division
L. Wooten Senior United States District Judge
matter comes before the Court for consideration of the
petition to vacate, set aside, or correct a sentence pursuant
to 28 U.S.C. Â§ 2255 filed by Petitioner Kennedy Covington.
For the reasons stated below, the petition is denied.
Factual and Procedural History
was charged with and pled guilty to being a felon in
possession of a firearm and ammunition. After granting the
Government's motion for a downward departure pursuant to
USSG § 5K1.1, the Court sentenced him to 144 months
incarceration. ECF No. 76. He filed a direct appeal, but the
Fourth Circuit affirmed. United States v. Covington,
360 Fed.Appx. 426 (4th Cir. 2010).
was classified as an armed career criminal under the Armed
Career Criminal Act (ACCA), which imposes a mandatory minimum
fifteen-year sentence on a felon who possesses a firearm and
who has three or more prior convictions for committing
certain drug crimes or “violent felon[ies].” 18
U.S.C. § 924(e)(1). His Presentence Investigation Report
(PSR) did not specifically state which offenses were
classified as ACCA predicate convictions, but it is likely
that the follow convictions were counted:
(1) Attempted Robbery, 2nd Degree (New York) (PSR ¶ 18);
(2) Attempted Robbery, 1st Degree (New York) (PSR ¶ 19);
(3) Felony Robbery With a Dangerous Weapon (North Carolina)
(PSR ¶ 25).
Petitioner's memorandum in support of his § 2255
petition, he asserts that, in light of Johnson v. United
States, 135 S.Ct. 2551 (2015) and other cases, he no
longer has the requisite number of ACCA predicate convictions
and he is therefore entitled to a resentencing without the
ACCA enhancement. ECF No. 121. The parties then filed a
consent motion for judgment in his favor, saying in part,
“the Government agrees that Petitioner is entitled to
the requested relief and has no objection to the Court
vacating the Petitioner's sentence and re-sentencing
Petitioner without the enhancement pursuant to 18 U.S.C.
§ 924(e).” ECF No. 124 at 1. However, this filing
did not explain the basis for this position, other than a
general reference to Johnson.
Court later directed the parties to update their positions in
light of several opinions that had issued after the filing of
the consent motion. ECF No. 127. In response, the Government
filed a motion for summary judgment and related memorandum,
asserting that the two New York attempted robberies and the
North Carolina robbery still qualify as predicates and that
he remains an armed career criminal. ECF Nos. 129, 130.
matter is now ripe for decision.
28 U.S.C. § 2255
2255 provides that a prisoner in custody under sentence of a
federal court may file a petition in the court that imposed
the sentence to vacate, set aside, or correct the sentence. A
petitioner is entitled to relief under § 2255 if he
proves by a preponderance of the evidence one of the
following: (1) that the sentence was imposed in violation of
the Constitution or laws of the United States; (2) that the
court was without jurisdiction to impose such sentence; (3)
that the sentence was in excess of the maximum authorized by
law; or (4) that the sentence is otherwise subject to
collateral attack. See 28 U.S.C. § 2255(a);
Miller v. United States, 261 F.2d 546, 547 (4th Cir.
1958) (per curiam).
deciding a § 2255 petition, a court need not hold a
hearing 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). The Court has
thoroughly reviewed the motions, files, and records in this