United States District Court, E.D. North Carolina, Western Division
EARL BRITT SENIOR U.S. DISTRICT JUDGE
matter is before the court on petitioner’s 28 U.S.C.
§ 2255 motion. (DE # 42.)
2005, petitioner pled guilty to one count of interference
with commerce by robbery in violation of 18 U.S.C. §
1951 (“Hobbs Act robbery”) and one count of using
a firearm during and in relation to a crime of violence in
violation of 18 U.S.C. § 924(c). The court sentenced
petitioner to a total term of 271 months imprisonment.
Petitioner appealed, and the Fourth Circuit Court of Appeals
affirmed. (DE # 33.)
2008, petitioner filed pro se his first § 2255
motion, (DE # 36), which the court dismissed on initial
review, (DE # 38). In June 2016, petitioner filed pro
se this § 2255 motion and subsequently obtained the
Fourth Circuit Court of Appeals’ authorization, (DE #
49). Petitioner claims that he is actually innocent of his
§ 924(c) conviction because Hobbs Act robbery is not a
“crime of violence” for purposes of §
924(c). (See Mot., DE # 42, at 4.)
government’s motion, the court placed this proceeding
in abeyance pending the decisions in United States v.
Simms, 914 F.3d 229 (4th Cir. 2019) (en banc), and
United States v. Walker, 934 F.3d 375 (4th Cir.
2019). (DE # 53.) After those decisions issued, the court
directed the parties to file supplemental briefs regarding
the § 2255 motion. (8/27/19 Text Order.)
supplemental brief, the government argues because
petitioner’s § 924(c) conviction was predicated on
a “crime of violence, ” Hobbs Act robbery, the
conviction is valid. (DE # 55, at 3-4.) It maintains
petitioner’s § 2255 motion should be dismissed.
(Id. at 6.) Petitioner, through court-appointed
counsel, moves to extend the time to file his supplemental
brief. (DE # 56.)
A “crime of violence” for purposes of §
924(c) is defined as
an offense that is a felony and-
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.
18 U.S.C. § 924(c)(3). The Supreme Court recently held
that the “residual clause” of § 924(c)(3)(B)
is unconstitutionally vague. United States v. Davis,
139 S.Ct. 2319, 2336 (2019). However, “Hobbs Act
robbery constitutes a crime of violence under the force
clause of Section 924(c)[(3)(A)].” United States v.
Mathis, 932 F.3d 242, 266 (4th Cir. 2019) (footnote and
citations omitted). Therefore, because Hobbs Act robbery,
which served as the predicate offense for petitioner’s
§ 924(c) conviction, remains a crime of violence,
petitioner is not entitled to relief under § 2255.
further briefing on the issue is unnecessary,
petitioner’s motion for an extension of time is DENIED.
(DE # 56.) The § 2255 motion is DISMISSED. The court
finds that petitioner has not made “a substantial
showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). Pursuant to Rule 11(a) of the Rules
Governing Section 2255 Proceedings, a certificate of
appealability is DENIED.