Johnson v. United States

          ORDER

          MARTIN REIDINGER, UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on the Petitioner’s Motion to Vacate Sentence under 28 U.S.C. § 2255 [CV Doc. 1], ^[1] the Government’s Motion to Dismiss Petitioner’s Motion to Vacate [CV Doc. 7], the Government’s Motion for Leave to File a Corrected Motion to Dismiss [CV Doc. 8], and the Government’s Corrected Motion to Dismiss [CV Doc. 9]. The Petitioner is represented by Ann Hester of the Federal Defenders of Western North Carolina.

         I. BACKGROUND

         On November 8, 2001, Petitioner Bobby Leon Johnson (“Petitioner”) was charged in a seven-count Bill of Indictment for violations of 18 U.S.C. §§ 371 and 922(g). [CR Doc. 6]. On January 10, 2002, Petitioner was charged, along with three co-defendants, in a Superseding Indictment for violations of 18 U.S.C. §§ 371, 1951, 924(c), 922(g) and 2. [CR Doc. 10]. Then, on October 8, 2002, Petitioner was charged, along with two of the three co-defendants in the Superseding Indictment, in a Second Superseding Indictment. [CR Doc. 97]. At this time, Petitioner was charged with one count of conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371 (Count One); one count of bank robbery, in violation of 18 U.S.C. §§ 2113(a), 2 (Count Two); one count of armed bank robbery and aiding and abetting the same, in violation of 18 U.S.C. §§ 2113(d), 2 (Count Three); three counts of using and carrying a firearm during and in relation to a crime of violence and aiding and abetting the same, in violation of 18 U.S.C. §§ 924(c), 2 (Counts Four, Nine, Eleven); one count of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (Count Five); two counts of possession of ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Counts Six and Seven); and two counts of Hobbs Act robbery and aiding and abetting the same, in violation of 18 U.S.C. §§ 1951, 2 (Counts Eight and Ten). [CR Doc. 97: Second Superseding Indictment]. The Second Superseding Indictment lists Petitioner’s charge under § 924(c) on Count Nine as related “to a crime of violence, that is, the violation of Title 18, United States Code, Section 1951 set forth in Count Eight.” [Id. at 10]. There is no reference to 18 U.S.C. § 2 in Count Nine as a possible predicate offense. Petitioner’s § 924(c) charge in Count Nine is, therefore, specifically limited to the charge in Count Eight for Hobbs Act robbery, not for aiding and abetting Hobbs Act robbery.

         A day after Petitioner’s trial began and without a written plea agreement, Petitioner pled guilty to Counts One through Nine of the Second Superseding Indictment. [CR Doc. 116: Entry and Acceptance of Guilty Plea]. In exchange for Petitioner’s guilty plea on these charges, the Government agreed to dismiss Counts Ten and Eleven. [CR Doc. 237: Plea Hearing Tr. at 22]. On October 16, 2003, the Honorable Lacy H. Thornburg, United States District Judge, ^[2] presided over Petitioner’s sentencing hearing The Court sentenced Petitioner to a term of 60 months’ imprisonment on Count One; terms of imprisonment of 120 months on each of Counts Two, Three, Five, Six, Seven, and Eight, all to run concurrently with each other and with the sentence imposed on Count One; a term of 60 months’ imprisonment on Count Four, to run consecutively to the previously named sentences; and a term of 120 months’ imprisonment on Count Nine, to run consecutively to all previously named sentences, for a total term of 300 months’ imprisonment. [CR Doc. 160 at 2: Judgment]. Judgment on this conviction was entered on November 3, 2003. [Id.]. Petitioner appealed to the Fourth Circuit Court of Appeals and the Fourth Circuit affirmed this Court’s judgment. [CR Docs. 170, 186].

         On May 31, 2016, Petitioner filed a Motion to Vacate Sentence under 28 U.S.C. § 2255, arguing that his conviction under 18 U.S.C. § 924(c) on Count Nine is 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 Docs. 7, 9]. The Petitioner responded to the Government’s motion. [CV Doc. 12].

         This matter is now ripe for disposition.

         II. STANDARD OF REVIEW

         Rule 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).

         III. DISCUSSION

         Under 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 conviction on Count Nine was imposed in violation of the Constitution and laws of the United States. [CV Doc. 1 at 1-2].

         In 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 felony” definition is entitled to relief from his sentence. The Supreme Court has held that Johnson applies retroactively to claims asserted on collateral review. Welch v. United States, 136 S.Ct. 1257, 1265 (2016).

         The Petitioner argues his § 924(c) conviction on Count Nine is invalid under Johnson. [Doc. 1 at 1]. Section 924(c) criminalizes the use of a firearm in furtherance of a “crime of violence.” Under § 924(c), a crime is one of violence if it either “has an element the use, attempted use, or threatened use of physical force against the person or property of another, ” (the “force clause”) or “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)(B).

         In short, the Petitioner argues that because § 924(c)’s residual clause “is functionally indistinguishable from the ACCA’ residual clause, ” which was found to be unconstitutionally vague, Petitioner’s conviction for Hobbs Act robbery can qualify as a § 924(c) “crime of violence” only under the force clause. [Doc. 1 at 4-5]. Three years after the Petitioner filed his motion to vacate, the Supreme Court decided United States v. Davis, 139 S.Ct. 2319 (2019). In Davis, the Supreme Court specifically held the residual clause of § 924(c)’s definition of “crime of violence” is “unconstitutionally vague.” 139 S.Ct. at 2336. As such, Petitioner’s conviction on Count Nine is valid only if Hobbs Act robbery qualifies as a “crime of violence” under § 924(c)’s force clause. Recently, the Fourth Circuit squarely concluded that ...