United States District Court, M.D. North Carolina
RECOMMENDATION OF UNITED STATES MAGISTRATE
Patrick Auld United States Magistrate Judge
Court (per now-retired United States District Judge James A.
Beaty, Jr.) entered a Judgment memorializing Petitioner's
consecutive prison sentences of 72 and 120 months, imposed
after his guilty plea to interfering with commerce by
robbery, in violation of 18 U.S.C. § 1951(a)
(“Hobbs Act robbery”), and to carrying and using,
by discharging, firearms, during and in relation to a crime
of violence (i.e., the Hobbs Act robbery), in violation of 18
U.S.C. § 924(c)(1)(A)(iii) (“Section
924(c)”). (Docket Entries 57, 98; see also Docket Entry
1 (Indictment); Docket Entry 44 (Plea Agt.); Minute Entry
dated Oct. 23, 2013 (documenting Petitioner's guilty
plea).) Petitioner did not appeal (see Docket
Entry 93, ¶ 8), but did file a form Motion under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
(“Section 2255 Motion”), which he submitted to
prison officials for mailing on June 19, 2016 (see id., Decl.
Section 2255 Motion lists one “ground on which
[Petitioner] claim[s] that [he is] being held in violation of
the Constitution, laws, or treaties of the United
States” (id., ¶ 12): “Due Process denial in
light of Supreme Court's decision in Johnson/Welch made
retroactively applicable.” (Id., ¶
12(Ground One); see also id., ¶ 12(Ground One)(a)
(“Johnson v. U[nited] S[tates, U.S. ], 135
S.Ct. 2551 (2015); Welch v. U[nited States, U.S.,
136 S.Ct. 1257] (2016) stating [sic] that [Petitioner's]
Due Process Right were [sic] violated when the [C]ourt
sentenced him under Ct. (2) [for the Section 924(c) offense].
The [p]redicate relied upon [was] Ct. (1) [which charged an
offense under Section] 1951(a) & 2 [which] is a
non-violent crime. The [I]ndictment failed to charge a
federal offense. The underlying offense has to be violent to
trigger a [Section] 924(c) violation.”).)
to the General Order Governing Claims Related to Johnson . .
., the Office of the Federal Public Defender [wa]s appointed
to represent [Petitioner] and the [Section] 2255 Motion [wa]s
STAYED for a period of 45 days . . . to permit review by
counsel.” (Text Order dated July 27, 2016 (underscoring
added).) Following the expiration of that stay, the United
States timely “move[d] to dismiss as untimely [the
Section 2255 M]otion . . . .” (Docket Entry 106
(“Dismissal Motion”) at 1; see also Id.
at 1-2 (“[T]his Court entered [Petitioner's
J]udgment on March 28, 2014. [He] did not appeal, and his
[J]udgment became final 14 days later at the expiration of
the time to appeal. Because Petitioner first filed [the
Section] 2255 [M]otion . . . more than one year after his
[J]udgment became final, [the Section 2255 M]otion is
untimely under [Section] 2255(f)(1). Further, . . .
Petitioner's [Section 2255 M]otion does not fall within
the scope of [Section] 2255(f)(3), which provides the only
arguably available exception to the otherwise applicable
one-year statute of limitations.” (internal citations
of responding to the Dismissal Motion, Petitioner moved for a
stay (see Docket Entry 116), which the Court (per the
undersigned Magistrate Judge) granted, “pending a
decision from the United States Supreme Court in Lynch v.
Dimaya” (Text Order dated Nov. 10, 2016). The
Court (per the undersigned Magistrate Judge) subsequently
continued the stay, “pending the Fourth Circuit's
decision in . . . United States v. Mathis,
16-4633(L).” (Text Order dated May 3, 2018; accord Text
Order dated July 23, 2019.) Following the issuance of that
decision, the parties jointly “request[ed] that this
case be released from abeyance” (Docket Entry 125 at
3), which request the Court (per the undersigned Magistrate
Judge) granted (see Text Order dated Oct. 24, 2019).
regard to any merit the Dismissal Motion may have possessed
at the time of its filing, a recent ruling from the Supreme
Court effectively has rendered the Dismissal Motion moot. To
begin, as set out above (and like many other defendants
convicted of Section 924(c) crime-of-violence-related firearm
offenses), Petitioner filed the Section 2255 Motion
“seeking relief based on Johnson, in which the Supreme
Court held that the ‘residual clause' of 18 U.S.C.
§ 924(e)(2)'s definition of ‘violent
felony' [wa]s unconstitutionally vague, ”
Dorsey v. United States, No. 1:99CR203-2, 1:16CV738,
2019 WL 3947914, at *1 (E.D. Va. Aug. 21, 2019) (unpublished)
(internal citation and full case name omitted). Based on the
language quoted above, the Court should construe the Section
2255 Motion as contending that Johnson's reasoning
invalidates the similar “residual clause” portion
of the definition of “crime of violence” under
Section 924(c)(3), such that Petitioner's
“[Section] 924(c) conviction should be vacated because
the predicate offense no longer qualifies as a crime of
violence, ” Id. (internal parenthetical
with the first premise of such a claim, “[o]n June 24,
2019, the Supreme Court held that the residual clause of
[Section] 924(c)(3)'s definition of ‘crime of
violence' is also unconstitutionally vague.”
Id. (citing United States v. Davis, U.S.,
139 S.Ct. 2319, 2336 (2019)). That ruling precludes dismissal
of the Section 2255 Motion on untimeliness grounds. In that
regard, “under [Section] 2255(f)(3), courts will
consider a petitioner's motion timely if (1) he relies on
a right recognized by the Supreme Court after his judgment
became final, (2) he files a motion within one year from
‘the date on which the right asserted was initially
recognized by the Supreme Court,' and (3) the Supreme
Court or th[e Fourth Circuit] has made the right
retroactively applicable.” United States v.
Brown, 868 F.3d 297, 301 (4th Cir. 2017) (internal
citation omitted) (quoting 28 U.S.C. § 2255(f)(3)).
“Consequently, [the Court should] find Petitioner's
[Section 2255 M]otion timely, . . . [if] it relies on a right
recognized in Johnson or another more recent [retroactively
applicable] Supreme Court case.” Id. (internal
quotation marks omitted) (emphasis added).
the Court should deem the Section 2255 Motion's
post-Johnson/pre-Davis challenge to his Judgment as now
invoking Davis. See Carter v. United States, No.
16CV2184, 2019 WL 4126074, at *4 (C.D. Ill. Aug. 29, 2019)
(unpublished) (“find[ing] that [post-Johnson/pre-Davis]
claim relie[d] on Johnson and Davis”); see also
United States v. Dickerson, No. 3:09CR283, 2019 WL
3347175, at *1 (E.D. Va. July 25, 2019) (unpublished)
(describing “Davis as the last Johnson domino to
fall” (internal quotation marks omitted)). The Court
further should conclude that, because, in Welch, the Supreme
Court “held that its decision in Johnson  had
announced a new substantive rule of constitutional law that
applie[d] retroactively to cases on collateral review,
” United States v. Winston, 850 F.3d 677, 680
(4th Cir. 2017), “taken together, the Supreme
Court's holdings in Davis and Welch ‘necessarily
dictate' that Davis has been ‘made'
retroactively applicable to criminal cases that became final
before Davis was announced, ” In re Hammoud, 931 F.3d
1032, 1039 (11th Cir. 2019) (quoting Tyler v. Cain,
533 U.S. 656, 666 (2001)); accord United States v.
Reece, 938 F.3d 630, 633-35 (5th Cir. 2019); United
States v. Bowen, 936 F.3d 1091, 1097-1101 (10th Cir.
2019); Carter, 2019 WL 4126074, at *4-5; Miller v. United
States, Crim. No. 2:04-96, Civ. No. 2:16-5829, 2019 WL
4386397, at *6 (S.D. W.Va. July 24, 2019) (unpublished),
recommendation adopted, 2019 WL 4384142 (S.D. W.Va. Sept. 12,
2019) (unpublished). Given these considerations, the Court
should not dismiss the Section 2255 Motion as untimely.
addition, Davis establishes that Section 924(c)'s
“residual clause is unconstitutionally vague and cannot
be used to support [Petitioner's Section] 924(c)
conviction. What remains is the question whether the
predicate offense underlying . . . [his Section 924(c)
conviction] qualifies as a ‘crime of violence under
[Section] 924(c)'s force clause. If it so qualifies,
[that] conviction remains valid . . . .” Dorsey, 2019
WL 3947914, at *2.
Court need not solicit briefing from the parties regarding
that question, because - as their Joint Status Report
acknowledges (see Docket Entry 125 at 2) - the Fourth Circuit
“[has] conclude[d] that Hobbs Act robbery constitutes a
crime of violence under the force clause of Section
924(c).” United States v. Mathis, 932 F.3d
242, 266 (4th Cir. 2019). Accordingly, as “it plainly
appears from the [Section 2255 M]otion . . . and the record
of prior proceedings that [Petitioner] is not entitled to
relief, the [Court] must dismiss the [Section 2255 M]otion .
. . .” Rule 4(b), Rules Governing Section 2255
Proceedings (“Section 2255 Rules”); see also
Lloyd v. United States, Nos. 1:12CR449-2, 1:16CV627,
2019 WL 4600211, at *1 (M.D. N.C. Sept. 23, 2019)
(unpublished) (“find[ing] that [analogous] claim
fail[ed] on the merits” in light of Mathis).
THEREFORE RECOMMENDED that the Dismissal Motion (Docket Entry
106) be denied as moot and that the Section 2255 Motion
(Docket Entry 93) be dismissed pursuant to Section 2255 Rule
4(b), without issuance of a certificate of appealability.
 Parenthetical citations refer to
Petitioner's above-captioned federal criminal case.
Petitioner originally pleaded guilty without a plea agreement
to the Hobbs Act robbery charge with the intent of proceeding
to trial on the Section 924(c) charge (see Minute Entry dated
Oct. 8, 2013), but later executed a Plea Agreement as to both
charges (see Docket Entry ...