United States District Court, E.D. North Carolina, Southern Division
MALCOLM J. HOWARD SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on petitioner's motion to
vacate under 28 U.S.C. Â§ 2255, [DE #181], and motion for
extension of time to file supplemental briefing, [DE #228].
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
22, 2016, petitioner, proceeding pro se, 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)
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 #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.
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.
 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 ...