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United States v. Stewart

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

January 7, 2020

DAVIN JEROME STEWART, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE

         This matter is before the court on petitioner Davin Jerome Stewart's (“Stewart”) motions to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255, ECF Nos. 272 and 310. The government filed a motion to dismiss or, in the alternative, for summary judgment, ECF No. 283. For the reasons set forth below, the court dismisses Stewart's petitions and grants the government's motion.

         I. BACKGROUND

         On March 11, 2009, the government named Stewart, along with two other defendants, in an indictment charging him with armed bank robbery in violation of 18 U.S.C. § 2113 (Count 1); carrying a firearm during the commission of a violent crime in violation of 18 U.S.C. § 924(c) (Count 2); and felony possession of a firearm in violation of 18 U.S.C. § 922(g) (Count 3). On November 18, 2009, a jury found Stewart guilty of all three counts. On May 25, 2010, the court sentenced Stewart to a total aggregate term of imprisonment of 171 months. Stewart appealed his conviction to the Fourth Circuit, which affirmed on January 1, 2011. United States v. Stewart, 408 Fed.Appx. 755, 757 (4th Cir. 2011) (unpublished opinion).

         On April 6, 2016, Stewart, acting pro se, filed a § 2255 petition seeking relief from his conviction and sentence. ECF No. 272. On June 10, 2016, the government filed a motion to dismiss Stewart's petition or, in the alternative, for summary judgment. ECF No. 283. Stewart responded to the government's motion on August 19, 2016. ECF No. 295. On September 25, 2019, Stewart filed a second § 225 petition, supplementing his first petition. ECF No. 310.

         II. STANDARD

         Federal district courts are charged with liberally construing petitions filed by pro se litigants to allow the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9-10 (1980). Pro se petitions are therefore held to a less stringent standard than those drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Liberal construction, however, does not mean that a court may ignore a clear failure in the pleading to allege facts that set forth a cognizable claim. See Weller v. Dep't of Soc. Servs., 901 F.3d 387, 390-91 (4th Cir. 1990).

         Pursuant to 28 U.S.C. § 2255(a):

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         The petitioner must prove the grounds for collateral attack by a preponderance of the evidence.[1] See King v. United States, 2011 WL 3759730, at *2 (D.S.C. Aug. 24, 2011) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)).

         If, on a motion to dismiss, the court considers matters outside of the pleadings, such as a party's supporting memoranda and attachments, the court treats the motion as one for summary judgement. Fed.R.Civ.P. 12(d). “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). At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Anderson v. Liberty lobby, Inc., 477 U.S. 242, 255 (1986).

         III. DISCUSSION

         In his petition, Stewart argues that his conviction under § 924(c) should be vacated based on the court's ruling in Johnson v. United States, 135 S.Ct. 2551 (2015). Specifically, Stewart argues that his conviction for armed bank robbery is not a “crime of violence” for the purposes of § 924(c). Further, Stewart argues that his § 924(c) conviction cannot stand because neither his indictment nor jury form alleged “brandishing.” Finally, Stewart's supplemental petition argues that his counsel rendered ineffective assistance in failing to object to his sentence in light of Johnson. Because no ground entitles Stewart to relief, the court dismisses Stewart's petitions.

         A. Stewart's ...


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