United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
REIDINGER UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on the Petitioner’s Motion
to Vacate Sentence under 28 U.S.C. § 2255 [CV Docs. 1,
the Petitioner’s “Motion for Summary
Judgment” [CV Doc. 26]; the Petitioner’s
“Motion for Reconsideration for Resentencing” [CV
Doc. 28]; and the Petitioner’s “Addendum for
Resentencing” [CV Doc. 30].
Petitioner pleaded guilty to one count of conspiracy to
commit a Hobbs Act robbery, in violation of 18 U.S.C. §
1951 (Count One); one count of Hobbs Act robbery, in
violation of 18 U.S.C. § 1951 (Count Two); and one count
of using a firearm in furtherance of a crime of violence,
that is, the Hobbs Act robbery set forth in Count Two, and
aiding and abetting the same, in violation of 18 U.S.C.
§§ 924(c) and 2 (Count Three). [CR Doc. 68]. The
Court sentenced the Petitioner to a total of 360
months’ imprisonment. [Id.]. The Petitioner
unsuccessfully appealed the Court’s judgment. [CR Docs.
70, 80, 81]. The Fourth Circuit also denied the
Petitioner’s later request for mandamus relief. [CR
Doc. 98]. The Petitioner subsequently filed four unsuccessful
Section 2255 motions to vacate challenging his conviction and
the Supreme Court’s decision in Johnson v. United
States, 135 S.Ct. 2551 (2015), the Petitioner sought and
obtained authorization from the Fourth Circuit to file a
second or successive motion to vacate. [CR Doc. 133]. On June
6, 2016, the Petitioner commenced this action by filing a
motion to vacate (styled “Addendum”) pursuant to
28 U.S.C. § 2255. [CV Doc. 1]. In the motion to vacate,
Petitioner contends that his Hobbs Act robbery offense no
longer qualifies as a “crime of violence” in
light of Johnson. Consequently, the Petitioner asserts that
his Hobbs Act offense likewise cannot support his §
924(c) conviction and such conviction must be vacated.
[Id.]. The Petitioner also argues that, in light of
Johnson he was improperly classified as a Career
16, 2016, another Section 2255 motion to vacate, also based
on Johnson, was filed by the Federal Defenders of North
Carolina on the Petitioner’s behalf. [CV Doc. 4]. This
counseled motion challenges only the Petitioner’s
§ 924(c) conviction and does not assert any challenge to
his designation as a Career Offender. [Id.].
August 24, 2016, this Court granted the Government’s
motion to stay this action pending a decision by the Fourth
Circuit Court of Appeals in the cases of United States v.
Ali, No. 15-4433 (4th Cir.) and United States v.
Simms, No. 15-4640 (4th Cir.). On February 19, 2019,
this Court granted the Government’s motion to continue
holding this case in abeyance pending a decision by the
United States Supreme Court in United States v.
Davis, No. 18-431 (cert. granted Jan. 4, 2019). [CV Doc.
16]. The Court also ordered that the Government would have 60
days from the date the Supreme Court issues its decision in
Davis within which to file its response in this matter.
20, 2019, the Court granted the Petitioner’s motion to
terminate the Federal Defenders’ representation of the
Petitioner. [CV Doc. 19]. The case, however, remained stayed
pending a decision in Davis.
24, 2019, the Supreme Court issued its decision in Davis.
United States v. Davis, 139 S.Ct. 2319 (2019). On
June 25, 2019, the Court entered a text order lifting the
stay in this case and instructing the Government to file a
response within thirty (30) days. The Government filed its
Response in Opposition on August 23, 2019. [CV Doc. 29].
the pendency of this matter, the Petitioner has filed
multiple motions for “resentencing, ” which the
Court has denied. [See CV Doc. 27]. Currently pending are the
Petitioner’s “Motion for Summary Judgment”
[CV Doc. 26]; a “Motion for Reconsideration for
Resentencing” [CV Doc. 28]; and an “Addendum for
Resentencing” [CV Doc. 30].
STANDARD OF REVIEW
to Rule 4(b) of the Rules Governing Section 2255 Proceedings,
sentencing courts are directed to promptly examine motions to
vacate, along with “any attached exhibits and the
record of prior proceedings” in order to determine
whether a petitioner is entitled to any relief. After having
considered the record in this matter, the Court finds that no
response is necessary from the United States. Further, the
Court finds that this matter can be resolved without an
evidentiary hearing. See Raines v. United
States, 423 F.2d 526, 529 (4th Cir. 1970).
Petitioner moves to vacate the conviction he received under
18 U.S.C. § 924(c) for possession of a firearm in
furtherance of a “crime of violence.” The
predicate for that offense, however, the Petitioner’s
substantive Hobbs Act robbery conviction, remains a
“crime of violence” today. The Fourth Circuit
recently held that a Hobbs Act robbery constitutes a crime of
violence under the force clause of Section 924(c). See
United States v. Mathis,932 F.3d 242, 266 (4th Cir.
2019). That the ...