United States District Court, W.D. North Carolina, Charlotte Division
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
...