United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge
MATTER is before the Court on Petitioner's
Motion to Vacate Sentence under 28 U.S.C. § 2255, (Doc.
No. 1), and the Government's Motion to Dismiss, (Doc. No.
9). Also pending is the Government's unopposed Motion for
an Extension of Time to File a Reply, (Doc. No. 16), which
will be denied as moot.
was indicted in the underlying criminal case for: Count (1),
Hobbs Act conspiracy; Count (2), Hobbs Act robbery and aiding
and abetting the same (18 U.S.C. §§ 1951, 2); and
Count (3), using and carrying firearms during and in relation
to a crime of violence, “that is, the violation of
Title 18, United States Code 1951 set forth in Count Two,
” and aiding and abetting the same (18 U.S.C.
§§ 924(c), 2). (3:10-cr-208, Doc. No. 3 at 4). A
jury found Petitioner guilty as charged. (Id., Doc.
Court sentenced Petitioner to 60 months' imprisonment for
Counts (1) and (2), concurrent, and 120 months for Count (3),
consecutive, for a total of 180 months' imprisonment.
(Id., Doc. No. 159).
challenged his 120-month mandatory minimum consecutive
sentence for the § 924(c) violation on direct appeal. He
argued that he was only indicted for, and the jury was only
instructed on, whether he carried a firearm whereas the Court
found at sentencing that a firearm was discharged. The Fourth
Circuit affirmed because the overwhelming evidence revealed
that the weapon was discharged at a police officer as
Petitioner and his co-conspirators fled. United States v.
Clinton, 547 Fed.Appx. 261 (4th Cir. 2013).
filed a § 2255 Motion to Vacate that was dismissed with
prejudice and denied, case number 3:14-cv-666. Clinton v.
United States, 2015 WL 5155372 (W.D. N.C. Sept. 2,
2015). Petitioner did not appeal.
filed the instant § 2255 Motion to Vacate through
counsel on June 23, 2016, arguing that his conviction and
sentence under § 924(c) violates due process under
Johnson v. United States, 135 S.Ct. 2551 (2015).
(Doc. No. 1); see (Doc. No. 2) (Fourth Circuit's
order authorizing Petitioner to file a successive § 2255
petition). These proceedings were stayed for several years
pending the Fourth Circuit's consideration of United
States v. Ali, 15-4433, United States v. Simms,
15-4640, and the United States Supreme Court's
consideration of United States v. Davis, 18-431.
(Doc. Nos. 5, 8).
Government has now filed a Motion to Dismiss the § 2255
Motion to Vacate, (Doc. No. 9), arguing that Petitioner's
challenge to his § 924(c) conviction is procedurally
barred and foreclosed by United States v. Mathis,
932 F.3d 242, 266 (4th Cir. 2019), in which the
Fourth Circuit held that Hobbs Act robbery is a “crime
of violence” under § 924(c)'s force clause.
Petitioner filed a Response, (Doc. No. 13), arguing that
Mathis does not foreclose § 2255 relief because
the jury instructions permitted the jury to convict
Petitioner of violating § 924(c) based on the Hobbs Act
conspiracy charged in Count (1) and, alternatively, that
Count (2) is insufficient to support the § 924(c)
conviction because aiding and abetting Hobbs Act robbery does
not satisfy § 924(c)'s force clause. The Government
argues in its Reply, (Doc. No. 17), that the Court's
instruction on Pinkerton liability did not
constructively amend the Indictment to change the predicate
offense for the § 924(c) charge.
STANDARD OF REVIEW
federal prisoner claiming that his “sentence was
imposed in violation of the Constitution or the laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.”
28 U.S.C. § 2255(a).
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 arguments presented by Petitioner 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).