United States District Court, E.D. North Carolina, Eastern Division
C. DEVER, UNITED STATES DISTRICT JUDGE
Maurice Gibson ("Gibson" or "petitioner")
moves to vacate his sentence under 28 U.S.C. § 2255
[D.E. 353, 363]. As explained below, the court dismisses
Gibson's section 2255 motions and denies a certificate of
20, 2016, Gibson moved under 28 U.S.C. § 2255 to vacate,
set aside, or correct his sentence [D.E. 353]. On June 25,
2016, Gibson moved a second time under 28 U.S.C. § 2255
to vacate, set aside, or correct his sentence [D.E. 363].
Gibson contends that his conviction under 18 U.S.C. §
924(c) is no longer valid following Johnson v United
States. 135 S.Ct. 2551 (2015). See [D.E. 363]
4; [D.E. 353] 4. In support, Gibson argues that Hobbs Act
robbery in violation of 18 U.S.C. § 1951 and conspiracy
to commit Hobbs Act robbery fail to qualify as a predicate
crime of violence for a section 924(c) conviction. See [D.E.
363] 4; [D.E. 353] 4.
October 7, 2016, the court stayed this action pending
decisions in United States v. Walker. No. 15-4301,
2019 WL 3756052 (4th Cir. Aug. 9, 2019), and United
States v Simms, 914 F.3d 229 (4th Cir. 2019) (en banc)
[D.E. 378]. On August 13, 2019, the court directed the
parties to submit supplemental briefing concerning
Gibson's motion to vacate [D.E. 407].
September 10, 2019, respondent moved for an extension of time
to respond to this court's order [D.E. 418]. On September
11, 2019, the court granted respondent's motion [D.E.
424]. On September 20, 2019, respondent filed a response
arguing that the court should dismiss Gibson's motion
because Hobbs Act robbery is a crime of violence. See [D.E.
424] 4-5. Gibson did not respond.
petitioner bringing a collateral attack under section 2255
bears the burden of proving that the sentence or conviction
was imposed in violation of the Constitution or laws of the
United States, that the court was without jurisdiction to
impose such a sentence, that the sentence exceeded the
maximum authorized by law, or that the sentence
otherwise is subject to collateral attack. See 28 U.S.C.
§ 2255(a). A petitioner must prove his grounds for
collateral relief by a preponderance of the evidence. See
Miller v. United States. 261 F.2d 546, 547 (4th Cir.
1958) (per curiam).
U.S.C. § 924(c)(3) defines "crime of violence"
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). In United States v.
Davis, the Supreme Court held that the residual clause
of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.
See 139 S.Ct. 2319, 2323-24 (2019). However, in United
States v. Mathis. the Fourth Circuit held "that
Hobbs Act robbery constitutes a crime of violence under the
force clause of Section 924(c)[(3)(A)]." 932 F.3d 242,
266 (4th Cir. 2019). Moreover, Gibson's section 924(c)
convictions in count one and count two of the criminal
information were predicated on separate Hobbs Act robbery
offenses, and not on conspiracy to commit Hobbs Act robbery.
See [D.E. 220] 1-2; Presentence Investigation Report
("PSR") [D.E. 249] ¶¶ 8-12; Plea
Agreement [D.E. 231] ¶ 3; Rule 11 Tr. [D.E. 305] 13-26.
Thus, Gibson's section 2255 claims fail.
reviewing the claims presented in Gibson's motions, the
court finds that reasonable jurists would not find the
court's treatment of his claims debatable or wrong and
that the claims do not deserve encouragement to proceed any
further. Accordingly, the court denies a certificate of
appealability. See 28 U.S.C. § 2253(c); Miller-El v.
Cockrell. 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel. 529 U.S. 473, 484 (2000).
the court LIFTS the stay, DISMISSES petitioner's section
2255 motions [D.E. 363, 353], and DENIES a certificate of