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Samuel v. United States

United States District Court, E.D. North Carolina, Southern Division

September 19, 2019

BERNARD SAMUEL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          MALCOLM J. HOWARD SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the court on petitioner's motion to vacate under 28 U.S.C. § 2255, [DE #181], and motion for extension of time to file supplemental briefing, [DE #228].

         BACKGROUND

         On August 10, 2015, pursuant to a signed Memorandum of Plea Agreement, petitioner pled guilty to robbery of a business in interstate commerce, and aiding and abetting, in violation of 18 U.S.C. §§ 1951(a) and 2 (Count One); and brandishing and possessing 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)(ii) and 2 (Count Two) . Petitioner was sentenced by this court to a total term of imprisonment of 96 months on February 9, 2016. Petitioner did not appeal.

         On June 22, 2016, petitioner, proceeding pro se[1], filed the instant motion to vacate pursuant to 28 U.S.C. § 2255, [DE #156], arguing that 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) .[2]

         COURT'S DISCUSSION

         The 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)).

         Therefore, in light of Mathis, defendant's claim is without merit.

         CONCLUSION

         For the foregoing reasons, petitioner's motion, [DE #181], is DENIED. Petitioner's motion to extend time to file supplemental briefing, [DE #228], is DENIED AS MOOT. The clerk is directed to close this case.

         A 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.

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Notes:

[1] On October 17, 2016, counsel filed a notice regarding petitioner's § 2255 motion, noting that petitioner had fully presented his claim for relief, and that she would not be making any ...


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