United States District Court, W.D. North Carolina, Asheville Division
Reidinger United States District Judge.
MATTER is before the Court on Petitioner's
Motion for Resentencing [CV Doc. 22]; Petitioner's second
Motion for Resentencing [CV Doc. 23]; and Petitioner's
“Motion of Rebuttal for Time Extension for the
Government” [CV Doc. 24].
was convicted by plea on one count of conspiracy to commit a
robbery in violation of 18 U.S.C. § 1951, one count of
robbery in violation of 18 U.S.C. § 1951, and one count
of using a firearm in furtherance of a crime of violence in
violation of 18 U.S.C. §§ 924(c), 2. [CR Doc. 68].
The Court sentenced Petitioner to a total of 360 months'
imprisonment. [Id.]. The Petitioner unsuccessfully
appealed the Court's judgment. [CR Docs. 70, 80, 81]. The
Fourth Circuit also denied Petitioner's later request for
mandamus relief. [CR Doc. 98]. Plaintiff has previously filed
four unsuccessful Section 2255 petitions challenging his
conviction and sentence.
6, 2016, Petitioner commenced this action by filing a motion
to vacate pursuant to 28 U.S.C. § 2255. [CV Doc. 1]. In
the motion to vacate, Petitioner contends that his Hobbs Act
robbery offense no longer qualifies as a “crime of
violence” in light of Johnson v. United
States, 135 S.Ct. 2551 (2015). Consequently, Petitioner
asserts that his Hobbs Act offense likewise cannot support
his § 924(c) conviction and such conviction must be
vacated. [Id.]. On June 16, 2016, another Section
2255 motion to vacate, also based on Johnson, was
filed by the Federal Defenders of North Carolina on
Petitioner's behalf. [Doc. 4]. Because Petitioner had
previously filed unsuccessful Section 2255 motions, he sought
and obtained authorization from the Fourth Circuit to file a
second or successive motion. [Id.; CR Doc. 133].
August 24, 2016, this Court granted the Government's
motion to stay this action pending a decision by the Fourth
Circuit Court of Appeals in the cases of United States v.
Ali, No. 15-4433 (4th Cir.) and United States v.
Simms, No. 15-4640 (4th Cir.). On February 19, 2019,
this Court granted the Government's motion to continue
holding this case in abeyance pending a decision by the
United States Supreme Court in United States v.
Davis, No. 18-431 (cert. granted Jan. 4, 2019). [Doc.
16]. The Court also ordered that the Government would have 60
days from the date the Supreme Court issues its decision in
Davis within which to file its response in this
matter. [Id.]. On May 20, 2019, the Court granted
Petitioner's motion to terminate the Federal
Defenders' representation of Petitioner. [Doc. 19].
5, 2019, Petitioner filed a “Motion for
Resentencing” (“First Motion”). [Doc. 22].
In Petitioner's First Motion, which was filed before
Davis was decided, Petitioner states that he
“would like to put this respected court on notice that
when the Supreme Court rules in the Davis case [for]
which Mr. Ruff's motion [to vacate] was placed in
abeyance Mr. Ruff would like to further challenge his illegal
sentence that was based off the 924(c) charge.” [Doc.
22 at 1]. Specifically, Petitioner argues that:
The gun that Mr. Ruff is charged with the government never
established a nexus of the guns to the alleged robbery that
Mr. Ruff was charged with nor did the government establish[ ]
if Mr. Ruff ever knew or had possession of the guns that Mr.
Ruff is charged with the only thing the government can prove
is the guns [were] recovered from Mr. Ruff's suitcase.
24, 2019, the Supreme Court issued its decision in
Davis. United States v. Davis, No. 18-431,
___ S.Ct. ___, 2019 WL 2570623 (June 24, 2019). On June 25,
2019, the Court entered a text order lifting the stay in this
case and instructing the Government that it had until August
23, 2019 to file a response in this matter.
1, 2019, Petitioner filed a second “Motion for
Resentencing” (“Second Motion”), in which
Petitioner notes that the Supreme Court issued a decision in
Davis on June 24, 2019, and that Petitioner will
seek $1 million for every day he is in custody after that
date. Petitioner further states that he wants an evidentiary
hearing and “to be in court” and for every day
after July 3, 2019 that he remains in custody “the 1
million doubles per day.” [Doc. 23].
3, 2019, Petitioner filed a “Motion of Rebuttal for
Time Extension for the Government” (“Third
Motion”) [Doc. 24], which appears to be in response to
the Court's June 25, 2019 text order instructing the
Government in accordance with the Court's previous Order
that the Government had until August 23, 2019 to respond to
Petitioner's motion to vacate. Petitioner argues that:
The Government doesn't need anymore time the government
has had a year to prepare for this. This is a total violation
of Mr. Ruff's 5th Amendment right to due process. The
conduct to which Mr. Ruff was charged and the charges
themselves are violation of Mr. Ruff's rights. From the
time the Supreme Court ruled that 924(c)3b [sic] is
unconstitutionally vague as well as conspiracy to commit
Hobbs Act robbery no longer qualifies as a crime of violence.
So the pro se litigant ...