United States District Court, E.D. North Carolina, Eastern Division
MALCOLM H. HOWARD SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on petitioner's motion to
vacate under 28 U.S.C. § 2255, [DE #107], and motion for
extension of time to file supplemental briefing, [DE #138].
August 13, 2012, pursuant to a signed Memorandum of Plea
Agreement, petitioner pled guilty to 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 use of a firearm during and in
relation to a crime of violence, and aiding and abetting, in
violation of 18 U.S.C. §§ 924(c) and 2 (Count Ten).
Petitioner was sentenced by this court to a total term of
imprisonment of 132 months on December 12, 2012. Petitioner
did not appeal.
6, 2016, petitioner filed the instant motion to vacate
pursuant to 28 U.S.C. § 2255, [DE #107], 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
in light of Mathis, defendant's claim is without merit.
foregoing reasons, petitioner's motion, [DE #107], is
DENIED. Petitioner's motion to extend time to file
supplemental briefing, [DE #138], 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). ...