United States District Court, W.D. North Carolina
SHARIFF OMAR CARMICHAEL, also known as PAUL JOHNSON, also known as MICHAEL JOHNSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
D. Whitney Chief United States District Judge.
MATTER is before the Court upon Petitioner Shariff
Omar Carmichael's pro se Motion to Vacate, Set Aside or
Correct Sentence, 28 U.S.C. § 2255 (Doc. No. 1), in
which he raises a claim pursuant to Johnson v. United
States, 135 S.Ct. 2551 (2015). Also before the Court is
the Government's Motion to Dismiss Carmichael's
Motion to Vacate. (Doc. No. 6.)
September 21, 2006, Carmichael was convicted, after a jury
trial in this Court, of bank robbery, in violation of 18
U.S.C. § 2113(a) (Count One); armed bank robbery, in
violation of 18 U.S.C. § 2113(d) (Count Two); possession
of a firearm during and in relation to a crime of violence,
in violation of 18 U.S.C. § 924(c) (Count Three); and
possession of a firearm by a felon in violation of 18 U.S.C.
§ 922(g)(1) (Count Four). Verdict, Doc. No.
The Court sentenced him to an aggregate prison term of 346
months. J., Doc. No. 115. Carmichael's judgment was
affirmed on direct appeal. United States v. Johnson,
269 F. App'x 331, 2008 WL 687330 (4th Cir. 2008)
attests that he placed his § 2255 Motion in the prison
mailing system on June 24, 2016. (§ 2255 Mot. 11, Doc.
No. 1.) However, the postmark on the Motion is dated July 29,
2016 (§ 2255 Env., Doc. No. 1-1), and it was not filed
in this Court until August 2, 2016.
sole claim is that his § 924(c) conviction and sentence
should be vacated in light of the Supreme Court's holding
in Johnson v. United States, 135 S.Ct. 2551 (2015).
(§ 2255 Mot. 4.) The Government has filed a Motion to
Dismiss, arguing that Carmichael's § 2255 Motion is
procedurally barred and frivolous. (Doc. No. 6.)
January 18, 2017, the Court entered an Order in accordance
with Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975), notifying Carmichael of his right to respond to the
Government's Motion to Dismiss and providing him 30 days
to do so. The Court also notified Carmichael that failure to
reply could result in dismissal of his § 2255 Motion to
Vacate without further notice. (Doc. No. 7.) At his request,
the Court granted Carmichael an extension of time, up to and
including April 3, 2017, to respond. (Doc. No. 9.)
Nonetheless, Carmichael has not responded to the
Government's Motion to Dismiss.
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the arguments presented can be resolved without an
evidentiary hearing based on the record and governing case
law. See Raines v. United States, 423 F.2d 526, 529
(4th Cir. 1970).
issue before this Court is a legal one: whether
Carmichael's conviction for using and carrying a firearm
in furtherance of a crime of violence, in violation of 18
U.S.C. § 924(c), must be vacated under Johnson v.
United States. In Johnson, the Supreme Court
held that the residual clause of the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e), is
unconstitutionally vague. 135 S.Ct. at 2558. The ACCA
provides for a mandatory minimum sentence of 15 years in
prison for a defendant convicted of being a felon in
possession of a firearm, 18 U.S.C. § 922(g), if the
defendant has at least three prior convictions for serious
drug offenses or violent felonies. See §
felony” is defined in the ACCA as “any crime
punishable by imprisonment for a term exceeding one
year” that “(i) has as an element the use,
attempted use, or threatened use of physical force against
the person of another; or (ii) is burglary, arson, or
extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” § 924(e)(2)(B)
(emphasis added). The italicized closing words of §
924(e)(2)(B) constitute the ACCA's residual clause, which
the Johnson Court held is void for vagueness. 135
S.Ct. at 2556, 2558. The Court left intact the remainder of
the ACCA's “violent felony” definition,
including the four enumerated offenses and the “force
clause.” Id. at 2563.
Carmichael was convicted of being a felon in possession of a
firearm (Count Four), he is not challenging that conviction
or sentence. Rather, he seeks to extend
Johnson's void-for-vagueness holding to §
924(c). The Fourth Circuit has not yet determined whether
Johnson applies to § 924(c). This Court need
not resolve the issue here because the instant § 2255
motion to vacate would fail on the merits,
sustain a conviction under § 924(c), the government must
prove that the defendant used or carried a firearm
“during and in relation to any crime of violence or
drug trafficking crime . . . .” § 924(c)(1)(A). A