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Carmichael v. United States

United States District Court, W.D. North Carolina

January 5, 2018

SHARIFF OMAR CARMICHAEL, also known as PAUL JOHNSON, also known as MICHAEL JOHNSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Frank D. Whitney Chief United States District Judge.

         THIS 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.)

         I. BACKGROUND

         On 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. 108.[1] 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 United States v. Johnson, 269 F. App'x 331, 2008 WL 687330 (4th Cir. 2008) (unpublished).

         Carmichael 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.

         Carmichael's 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.)

         On 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.

         II. STANDARD OF REVIEW

         Rule 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).

         III. DISCUSSSION

         The 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 § 924(e)(1).

         “Violent 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.

         Although 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, regardless.[2]

         To 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 ...


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