United States District Court, E.D. North Carolina, Southern Division
TERRENCE W. BOYLE, CHIEF UNITED STATES DISTRICT
cause comes before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. The stay previously entered in this matter has
been lifted, and the parties have been permitted to file
supplemental briefing. For the reasons that follow,
petitioner's § 2255 motion is DENIED.
Johnson, is serving a sentence of 270 months'
imprisonment after pleading guilty to charges of interference
with commerce by robbery (Hobbs Act robbery) and aiding and
abetting (counts 2s and 4s), 18 U.S.C. §§1951 and
2, brandishing and discharging a firearm during a crime of
violence (count 3s), 18 U.S.C. § 924(c), and possession
of a firearm by a felon (count 10), 18 U.S.C. § 922(g).
filed a 28 U.S.C. § 2255 motion challenging his
conviction on count three of the superseding indictment,
arguing that it was based on the unconstitutionally vague
residual clause of 18 U.S.C. § 924(c). Upon a motion by
the government, this case was stayed on September 16, 2016,
to await decisions by the Fourth Circuit in United States
v. Walker, 934 F.3d 375 (4th Cir. 2019) and United
States v. Simms, 914 F.3d 229 (4th Cir. 2019). Although
Simms was decided on January 24, 2019, the mandate
in Simms was stayed to await the Supreme Court's
decision in United States v. Davis, 139 S.Ct. 2319
(2019). Following the Supreme Court's decision in
Davis and the Fourth Circuit's mandate in
Simms, this Court sua sponte lifted the
stay in this matter and ordered additional briefing. In this
posture, the § 2255 motion is ripe for adjudication.
motion under 28 U.S.C. § 2255 will be granted where the
petitioner has shown that his sentence was imposed in
violation of the Constitution or laws of the United States,
that the court was without jurisdiction to impose the
sentence, that the sentence was in excess of the maximum
sentence authorized by law, or that it is otherwise subject
to collateral attack. 28 U.S.C. § 2255(a).
§ 2255 motion, Johnson argues that his 18 U.S.C. §
924(c) conviction is invalid as it is based on a predicate
offense that is no longer a crime of violence, relying on the
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015). In Johnson, the
Supreme Court held that the residual clause of the Armed
Career Criminal Act's definition of a crime of violence
is unconstitutionally vague. Id. at 2563; 18 U.S.C.
§ 924(e)(2). Four years later, in Davis, the
Supreme Court invalidated the definition of a crime of
violence in 18 U.S.C. § 924(c)(3)'s residual clause.
139 S.Ct. at 2336; see also Simms, 914F.3d at 252.
to 18 U.S.C. § 924(c), a defendant shall be subject to a
consecutive sentence if he "during and in relation to
any crime of violence or drug trafficking crime ... for which
the person may be prosecuted in a court of the United States,
uses or carries a firearm or who, in furtherance of any such
crime, possesses a firearm" 18 U.S.C. §
924(c)(1)(A). The predicate offense for Johnson's
conviction under 18 U.S.C. § 924(c) in count three of
the superseding indictment is his Hobbs Act robbery charge in
count two of the superseding indictment. [DE 316].
924(c) defines a crime of violence as a felony offense that
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
another [the force clause], or (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 [the residual clause].
18 U.S.C. § 924(c)(3)(A)-(B). Although the residual
clause of § 924(c)(3) is now invalid, Hobbs Act robbery
remains a crime of violence under the force clause of §
924(c)(3)(A). United States v. Mathis, 932
F.3d 242, 266 (4th Cir. 2019). Accordingly, Johnson's
§ 924(c) conviction stands.
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, 483-84 (2000);
Rose v. Lee,252 F.3d 676, 683 (4th Cir. 2001). As