United States District Court, E.D. North Carolina, Eastern Division
MALCOLM J. HOWARD SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on petitioner's motions to
vacate under 28 U.S.C. § 2255, [DE #111 and DE #114],
and motion for extension of time to file supplemental
briefing, [DE #139].
November 8, 2012, pursuant to a signed Memorandum of Plea
Agreement, petitioner pled guilty to robbery of a business
engaged in interstate commerce, in violation of 18 U.S.C.
§ 1951 (Counts One, Three, Five, and Seven); robbery of
a business engaged in interstate commerce, and aiding and
abetting, in violation of 18 U.S.C. §§ 1951 and 2
(Counts Nine, Eleven, and Thirteen); and using or carrying a
firearm during and in relation to a crime of violence, and
aiding and abetting, in violation of 18 U.S.C. §§
924(c) (1) (A) and 2 (Count Ten) . Petitioner was sentenced
by this court to a total term of imprisonment of 228 months
on February 13, 2013. Petitioner did not appeal.
27, 2016, and on June 29, 2016 petitioner filed the instant
motions to vacate pursuant to 28 U.S.C. § 2255, [DE #111
and DE #114], arguing that Hobbs Act Robbery, in violation of
18 U.S.C. § 1951, no longer qualifies as a crime of
violence to support his conviction under 18 U.S.C. §
924(c) in light of the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015)
Supreme Court recently invalidated the residual clause of the
crime of violence definition under 18 U.S.C. §
924(c)(3)(B). United States v. Davis, 139 S.Ct.
2319, 2323-24 (2019). The precise question remaining before
the court is whether Hobbs Act Robbery is a crime of violence
under the force clause of 18 U.S.C. § 924(c)(3)(A). The
Fourth Circuit has recently decided this issue. United
States v. Mathis, 932 F.3d 242, 266 (4th Cir. 2019)
("Accordingly, we conclude that Hobbs Act robbery
constitutes a crime of violence under the force clause of
Section 924(c).") (citing United States v. Garcia-Ortiz,
904 F.3d 102, 109 (1st Cir. 2018); United States v.
Hill, 890 F.3d 51, 60 (2d Cir. 2018); United States
v. Rivera, 847 F.3d 847, 849 (7th Cir. 2017);
In re Fleur, 824 F.3d 1337, 1340-41 (11th Cir.
in light of Mathis, defendant's claim is without merit.
foregoing reasons, petitioner's motions, [DE #111 and DE
#114], are DENIED. Petitioner's motion to extend time to
file supplemental briefing, [DE #139], is DENIED AS MOOT. The
clerk is directed to close this case.
certificate of appealability shall not issue absent "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). A petitioner
satisfies this standard by demonstrating that reasonable
jurists would find that an assessment of the constitutional
claims is debatable and that any dispositive procedural
ruling dismissing such claims is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 484
(2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir.
2001). A reasonable jurist would not find this court's
dismissal of Petitioner's § 2255 Motion debatable.
Therefore, a Certificate of Appealability is DENIED.
 In the Johnson decision, the
Supreme Court of the United States invalidated the residual
clause found in 18 U.S.C. § 924 (e) (2) (B) (ii)
("Armed Career Criminal Act" or "ACCA").
Johnson, 135 S.Ct. at 2557. In Welch v. United
States, 136 S.Ct. 1257, 1265 (2016), the Supreme Court
held the rule pronounced in Johnson is retroactively
applicable on collateral review. The court notes petitioner
timely filed his motion to vacate within one year of
Johnson. 28 U.S.C. § 2255(f) (3) . ...