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Clinton v. United States

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

November 14, 2019



          Robert J. Conrad, Jr. United States District Judge

         THIS 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.

         I. BACKGROUND

         Petitioner 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. No. 85).

         The 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).

         Petitioner 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).

         Petitioner 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.

         Petitioner 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).

         The 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[1] liability did not constructively amend the Indictment to change the predicate offense for the § 924(c) charge.


         A 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).

         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 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).


         (1) Proce ...

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