United States District Court, W.D. North Carolina, Asheville Division
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
Doc. 1] and the Government’s Motion to
Dismiss Petitioner’s Motion to Vacate [CV Doc. 7]. The
Petitioner is represented by Ann Hester of the Federal
Defenders of Western North Carolina.
11, 2000, Petitioner Eric Alfonzo Hartgrove
(“Petitioner”) was charged, along with four
co-defendants, in a Bill of Indictment with one count of
conspiracy to commit Hobbs Act robbery, in violation of 18
U.S.C. § 1951 (Count One); two counts of Hobbs Act
robbery and aiding and abetting the same, in violation of 18
U.S.C. §§ 1951, 2 (Counts Five and Ten); one count
carrying and brandishing of a firearm during and in relation
to the charge in Count Five of Hobbs Act robbery and aiding
and abetting the same, in violation of 18 U.S.C. §§
924(c), 2 (Count Six); one count of carrying and brandishing
a firearm during and in relation to the charge in Count Ten
of Hobbs Act robbery, in violation of 18 U.S.C. § 924(c)
(Count Eleven); one count of conspiracy to possess with
intent to distribute cocaine and cocaine base in violation of
21 U.S.C. §§ 841(a)(1) and 846 (Count Thirteen);
one count of carrying and brandishing of a firearm during the
drug-trafficking offense and aiding and abetting the same, in
violation of 18 U.S.C. §§ 924(c), 2 (Count
Fourteen); and two counts of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1) (Counts
16 and 18). [CR Doc. 3: Sealed Indictment].
Indictment lists Petitioner’s § 924(c) charges in
Counts Six and Eleven as related to “a crime of
violence, that is, the violation of Title 18, United States
Code, Section 1951, set forth in” Counts Five and Ten,
respectively. There is no reference to 18 U.S.C. § 2 in
Counts Six or Eleven as a possible predicate offense.
Petitioner’s § 924(c) charges in Counts Six and
Eleven are, therefore, specifically limited to the charge in
Counts Five and Ten for Hobbs Act robbery, not for aiding and
abetting Hobbs Act robbery.
August 18, 2000, Petitioner and the Government entered into a
Plea Agreement, pursuant to which Petitioner agreed to plead
guilty to Counts One (Hobbs Act robbery conspiracy), Five
(Hobbs Act robbery and aiding and abetting Hobbs Act
robbery), and Six and Eleven (both § 924(c)’s with
Hobbs Act robbery predicates) and the Government agreed to
dismiss any remaining counts against the Petitioner. [CR Doc.
51 at 1: Plea Agreement]. On August 24, 2000, Petitioner
pleaded guilty in accordance with the Plea Agreement. [CR
Doc. 54: Entry and Acceptance of Guilty Plea].
Petitioner’s sentencing hearing was held on March 1,
2001, before the Honorable Lacy H. Thornburg, United States
District Judge. The Court sentenced Petitioner to terms of
imprisonment of 50 months on each of Counts One and Five, to
be served concurrently; a term of 50 months’
imprisonment on Count Six and 200 months’ imprisonment
on Count Eleven, both to run consecutively to any other term
of imprisonment imposed in the Judgment, for a total term of
300 months’ imprisonment. [CR Doc. 124 at 2: Judgment].
Judgment on this conviction was entered on March 23, 2001.
[Id.]. Petitioner did not file a direct appeal from
15, 2016, Petitioner filed a Motion to Vacate Sentence under
28 U.S.C. § 2255, arguing that his convictions under 18
U.S.C. § 924(c) are invalid under Johnson v. United
States, 135 S.Ct. 2551 (2015). [CV Doc. 1]. The Court
conducted an initial screening of Petitioner’s Motion
and ordered the Government to respond. [CV Doc. 2]. Upon the
request of the Government, this matter was stayed pending the
Fourth Circuit’s decision in United States v.
Ali, No. 15-4433, and United States v. Simms,
No. 15-4640. [CV Doc. 4]. The Fourth Circuit then ordered
that Ali would be held in abeyance pending the
Supreme Court’s decision in United States v.
Davis, No. 18-431. On the Government’s request,
this matter was in turn stayed pending Davis. [CV
Doc. 6]. The Supreme Court decided Davis on June 24,
2019. The next day this Court lifted the stay and ordered the
Government to respond to the Petitioner’s motion by
August 23, 2019. The Government timely filed a motion to
dismiss Petitioner’s § 2255 motion to vacate. [CV
Doc. 7]. The Petitioner responded to the Government’s
motion [Doc. 8] and the Government replied [Doc. 11].
matter is now ripe for disposition.
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the motion to vacate can be resolved without an
evidentiary hearing based on the record and governing case
law. See Raines v. United States, 423 F.2d 526, 529
(4th Cir. 1970).
28 U.S.C. § 2255, a petitioner is entitled to relief
when his original sentence “was imposed in violation of
the Constitution or laws of the United States, or [when] the
court was without jurisdiction to impose such
sentence.” 28 U.S.C. § 2255(a). The Petitioner
claims argues he is entitled to relief on these grounds
because, under Johnson, his convictions on Counts
Six and Eleven were imposed in violation of the Constitution
and laws of the United States. [CV Doc. 1 at 1-2].
Johnson, the Supreme Court struck down the Armed
Career Criminal Act’s (ACCA) residual clause, 18 U.S.C.
§ 924(e)(2)(B)(ii), as unconstitutionally vague and held
that enhancing a sentence under the ACCA’s residual
clause violates due process. Johnson, 135 S.Ct. at
2563. The ACCA residual clause defined a “violent
felony” to include any crime punishable by a term of
imprisonment exceeding one year that “otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. §
924(e)(2)(B). Accordingly, under Johnson, a
defendant who was sentenced to a statutory mandatory minimum
term of imprisonment based on a prior conviction that
satisfies only the residual clause of the “violent