United States District Court, W.D. North Carolina, Asheville Division
REIDINGER JR. 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. 13]. The
Petitioner is represented by Jared Paul Martin and Joshua
Carpenter of the Federal Defenders of Western North Carolina.
April 5, 2004, Petitioner Stephen Arthur Lacy
(“Petitioner”) was charged in a Bill of
Indictment with two counts of Hobbs Act robbery, in violation
of 18 U.S.C. § 1951 (Counts One and Four); two counts of
possession of a firearm in furtherance of a crime of
violence, that is Hobbs Act robbery as charged in Counts One
and Four, in violation of 18 U.S.C. § 924(c) (Counts Two
and Five); and two counts of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1) (Counts
Three and Six). [CR Doc. 1: Indictment]. On June 16, 2004,
Petitioner and the Government entered into a Plea Agreement,
pursuant to which Petitioner agreed to plead guilty to Counts
One and Two, and the Government agreed to dismiss Counts
Three, Four, Five and Six. [CR Doc. 13 at 1: Plea Agreement].
The Petitioner faced a maximum term of twenty 20 years'
imprisonment for Count One, see 18 U.S.C.
§§ 1951, and a mandatory consecutive sentence of
not less than 7 years to life for Count Two, see 18
U.S.C. § 924(c)(1). Petitioner pleaded guilty in
accordance with his Plea Agreement. [CR Docs. 13, 14].
Petitioner's sentencing hearing was held on December 9,
2005, before the Honorable Lacy H. Thornburg, United States
District Judge. At the hearing, the Court sentenced
Petitioner to a term of imprisonment of 204 months on Count
and 84 months on Count Two, to be served consecutively to the
term imposed on Count One, for a total term of 288
months' imprisonment. [CR Doc. 32 at 2: Judgment].
Judgment on this conviction was entered on December 30, 2005.
[Id.]. Petitioner appealed the Judgment to the
Fourth Circuit Court of Appeals and the Fourth Circuit
affirmed Petitioner's conviction. [Docs. 28, 46].
23, 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) 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, and the Supreme Court's decision
in Beckles v. United States, No. 15-8544. 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. The Court, in
turn, stayed this matter pending Davis. [Doc. 11].
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. [Id.]. The
Supreme Court decided Davis on June 24, 2019. The
Government timely filed a motion to dismiss Petitioner's
Section 2255 motion to vacate. [CV Doc. 13]. 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 Two 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 7-8]. 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