United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge.
MATTER is before the Court on Petitioner’s
Motion to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255, (Doc. No. 1), in which he raises a claim
pursuant to Johnson v. United States, 135 S.Ct. 2551
(2015), and on the Government’s Motion to Dismiss
Petitioner’s Motion to Vacate, Set Aside, or Correct
Sentence, (Doc. No. 7).
pled guilty in the underlying criminal case to one count of
Hobbs Act robbery (18 U.S.C. § 1951), possession of a
firearm during and in relation to a crime of violence, i.e.,
Hobbs Act robbery (18 U.S.C. § 924(c)(1)), and
possession of a firearm by a felon (18 U.S.C. § 922(g)).
(3:07-cr-94, Doc. Nos. 1, 32).
Presentence Investigation Report calculated the offense level
as 32 because Petitioner is a career offender, having prior
convictions for robbery and first-degree attempted robbery,
and because the instant offense, Hobby Act robbery.
(Id., Doc. No. 30 at ¶ 43). Two levels were
deducted for acceptance of responsibility, resulting in a
total offense level of 30. (Id., Doc. No. 30 at
¶¶ 44-45). Petitioner has 24 criminal history
points and two points were added because Petitioner was on
probation at the time of the instant offense, resulting in a
criminal history category of VI, and the criminal history
category for career offenders is also VI. (Id., Doc.
No. 30 at ¶¶ 71-73). The resulting guidelines range
was 292 to 365 months’ imprisonment. (Id.,
Doc. No. 30 at ¶ 118).
Court accepted the PSR without change and sentenced
Petitioner to a total sentence of 360 months’
imprisonment consisting of 240 months for the Hobbs Act
robbery and weapon possession, and a consecutive 84-month
sentence for the § 924(c) violation. (Id., Doc.
No. 32). Counsel filed a memorandum brief on direct appeal.
The Fourth Circuit affirmed, finding that Petitioner’s
plea was knowing and voluntary and that the sentence was
reasonable. United States v. Lattaker, 2009 WL 82714
(4th Cir. 2009).
filed the instant § 2255 Motion to Vacate through
counsel on June 20, 2016. (Doc. No. 1). He argues that his
career offender enhancement and § 924(c) conviction are
invalid in light of Johnson, because: (1) his prior
convictions are not crimes of violence under the career
offender guideline; (2) the predicate offense of Hobbs Act
robbery is not a crime of violence under the career offender
guideline; and (3) Hobbs Act robbery is not a crime of
violence for purposes of the § 924(c) conviction.
case was stayed for several years during the pendency of
United States v. Ali, 15-4433, United States v.
Simms, 15-4640, and United States v. Davis, No.
18-431. (Doc. Nos. 4, 6).
August 23, 2019, the Government filed a Motion to Dismiss the
§ 2255 Motion to Vacate, (Doc. No. 7), arguing that
Petitioner’s claims are waived, procedurally barred,
and foreclosed by precedent. Petitioner has not filed a
Response and the time to do so has now expired.
SECTION 2255 STANDARD OF REVIEW
federal prisoner claiming that his “sentence was
imposed in violation of the Constitution or the laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.”
28 U.S.C. § 2255(a). Rule 4(b) of the Rules Governing
Section 2255 Proceedings provides that courts are to promptly
examine motions to vacate, along with “any attached
exhibits and the record of prior proceedings . . .” in
order to determine whether the petitioner is entitled to any
relief on the claims set forth therein. After examining the
record in this matter, the Court finds that the arguments
presented by Petitioner can be resolved without an
evidentiary hearing based on the record and governing case
law. See Raines v. United States, 423 F.2d 526, 529
(4th Cir. 1970).
guilty plea constitutes a waiver of all nonjurisdictional
defects, including the right to contest the factual merits of
the charges.” United States v. Willis, 992
F.2d 489, 490 (4th Cir. 1993). Thus, after a
guilty plea, a defendant may not “raise independent
claims relating to the deprivation of constitutional rights
that occurred prior to the entry of the guilty plea.”
Blackledge v. Perry, 417 U.S. 21, 29-30 (1974).
Rather, he is limited “to attacks on the voluntary and
intelligent nature of the guilty plea, through proof that the
advice received from counsel was not within the range of
competence demanded of attorneys in criminal cases.”
Id. There are narrow exceptions to the
enforceability of plea waivers such that “even a
knowing and voluntary waiver of the right to appeal cannot
bar the defendant from obtaining appellate review of certain