United States District Court, E.D. North Carolina, Western Division
JOSEPH A. MANN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MALCOLM J. HOWARD SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on petitioner's motion to
vacate under 28 U.S.C. § 2255, [DE #67], and motion for
extension of time to file supplemental briefing, [DE #75].
October 8, 2002, petitioner was found guilty by jury verdict
of interference with interstate commerce by means of robbery,
in violation of 18 U.S.C. § 1951 (Count Three) and
brandishing a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)
(Count Four). Petitioner was sentenced by this court to a
total term of imprisonment of 510 months on February 19,
2003. Petitioner filed a notice of appeal, [DE #47], and the
Fourth Circuit affirmed defendant's conviction and
sentence. [DE #51].
filed a motion to vacate pursuant to 28 U.S.C. § 2255,
[DE #53], which was dismissed without prejudice and
petitioner was allowed to seek authorization to file the
petition in the Eastern District of North Carolina. [DE #60
and #61]. Petitioner obtained permission from the Fourth
Circuit to file a successive § 2255 motion. [DE #65]. On
June 1, 2016, petitioner filed the instant motion to vacate
pursuant to 28 U.S.C. § 2255, [DE #67], 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. 2016)).
in light of Mathis, defendant's claim is without
foregoing reasons, petitioner's motion, [DE #67], is
DENIED. Petitioner's motion to extend time to file
supplemental briefing, [DE #75], 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. § 92 4 (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). ...