United States District Court, W.D. North Carolina, Charlotte Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on the Petitioner's
Motion to Vacate Sentence under 28 U.S.C. § 2255 [CV
Doc. 1] and the Government's Motion to Dismiss
Petitioner's Motion to Vacate [CV Doc. 10]. The
Petitioner is represented by Joshua Carpenter of the Federal
Defenders of Western North Carolina.
28, 2006, Petitioner Winston Gerald Littlejohn
(“Petitioner”) was charged in a Bill of
Indictment with one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1) (Count
One); one count of Hobbs Act robbery, in violation of 18
U.S.C. § 1951 Count Two); and one count of possession
and brandishing a firearm in furtherance of a crime of
violence, that is Hobbs Act robbery, in violation of 18
U.S.C. § 924(c) (Count Three). [CR Doc. 1: Indictment].
On May 4, 2007, Petitioner and the Government entered into a
Plea Agreement, pursuant to which Petitioner agreed to plead
guilty to Counts Two and Three, and the Government agreed to
dismiss Count One. [CR Doc. 13 at 1: Plea Agreement]. The
Petitioner faced a maximum term of twenty 20 years'
imprisonment for Count Two, see 18 U.S.C.
§§ 1951, and a mandatory consecutive sentence of
not less than 7 years to life for Count Three, see
18 U.S.C. § 924(c)(1)(A)(ii). Petitioner pleaded guilty
in accordance with his Plea Agreement. [CR Docs. 13, 14].
Petitioner's sentencing hearing was held on October 29,
2007. At the hearing, the Court sentenced Petitioner to a
term of imprisonment of 87 months on Count Two and 84 months
on Count Three, to be served consecutively to the term
imposed on Count Two, for a total term of 171 months'
imprisonment. [CR Doc. 17 at 2: Judgment]. Judgment on this
conviction was entered on November 9, 2007. [Id.].
Petitioner did not file a direct appeal from this Judgment.
17, 2016, Petitioner filed motion to vacate sentence under 28
U.S.C. § 2255, arguing that his conviction under 18
U.S.C. § 924(c) is invalid under Johnson v. United
States, 135 S.Ct. 2551 (2015). [CV Doc. 1]. After
conducting an initial review of Petitioner's § 2255
motion to vacate, the Court 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, or United States v.
Simms, No. 15-4640. 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. [Docs. 6, 7]. The Court
ordered that the Government would have 60 days to respond to
Petitioner's motion once the Supreme Court issued its
ruling in Davis. [Doc. 7]. The Supreme Court decided
Davis on June 24, 2019. The Government timely filed
a motion to dismiss Petitioner's § 2255 motion to
vacate. [CV Doc. 10]. The Petitioner, despite being
represented by counsel, did not respond.
matter is now ripe for disposition.
STANDARD OF REVIEW
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).
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
argues he is entitled to relief on these grounds because,
under Johnson, his conviction on Count Three was
imposed in violation of the Constitution and laws of the
United States. [CV Doc. 1].
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
the Petitioner argues his § 924(c) conviction is invalid
under Johnson. [Doc. 1 at 2-6]. 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