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, Set Aside or Correct Sentence under 28
U.S.C. § 2255, (Doc. No. 1), in which he raises a claim
pursuant to Johnson v. United States, 135 S.Ct. 2551
(2015), and on the Government's Motion to Dismiss, (Doc.
pled guilty in the underlying criminal case to: Counts (2)
and (5), Hobbs Act robbery and aiding and abetting on
February 11, 2006 and February 12, 2006, respectively (18
U.S.C. § 1951 and 2); and Count (3), using, carrying,
brandishing, and discharging a firearm during and in relation
to a crime of violence, that is, “Hobbes [sic] Act
robbery” on February 11, 2006 and aiding and abetting
the same (18 U.S.C. § 924(c) and 2). (3:06-cr-199, Doc.
No. 1 at 3); see (Id., Doc. No. 30).
Plea Agreement provides that Petitioner agrees to enter a
voluntary guilty plea to “Counts Two, Three, and Five
as set forth in the Bill of Indictment, and admits to being
in fact guilty as charged in those Counts.”
(Id., Doc. No. 30 at 1). The factual basis was
deferred until the time of sentencing, however, Petitioner
stipulated that there is a factual basis for the plea and
that the Court may use the offense conduct set forth in the
PSR, except any facts to which Petitioner objects, to
establish a factual basis for the plea. (Id., Doc.
No. 30 at 4). The Plea Agreement states that Petitioner
acknowledged the rights he was waiving by pleading guilty and
sets forth his sentencing exposure. (Id., Doc. No.
30 at 4-5). Petitioner and counsel discussed his rights to
appeal and to seek post-conviction relief and Petitioner
specifically waived both rights except for claims of
ineffective assistance of counsel, prosecutorial misconduct,
or the sentence to the extent that it is inconsistent with
the Plea Agreement or on the basis of unanticipated issues
that arise at sentencing that the Court finds and certifies
as requiring review by the Fourth Circuit Court of Appeals.
(Id., Doc. No. 30 at 5).
sentencing hearing, Petitioner confirmed that he was pleading
guilty knowingly and voluntarily. (Id., Doc. No. 62
at 3). The Court noted that “the 924(c) was to the
convenience store robbery….” (Id., Doc.
No. 62 at 5). The Judgment reflects that crime of violence
underlying the § 924(c) offense in Count (3) is
“Hobbes [sic] Act Robbery, and aiding and
abetting.” (Id., Doc. No. 45 at 1). The Court
sentenced Petitioner to a total of 225 months'
imprisonment, consisting of 105 months for Counts (2) and
(5), concurrent, and 120 months for Count (3), consecutive,
followed by a total of five years of supervised release.
(Id., Doc. Nos. 45, 46). Petitioner did not appeal.
filed a pro se § 2255 Motion to Vacate in 2008,
case number 3:08-cv-553, raising several claims of
ineffective assistance of counsel. The Court denied relief on
the merits. Jones v. United States, 2012 WL 878882
(W.D. N.C. March 13, 2012).
2013, Petitioner filed a Letter that was construed as a
§ 2255 Motion to Vacate, case number 3:13-cv-256, which
was dismissed as an unauthorized second or successive §
2255 petition. United States v. Jones, 2013 WL
2152815 (W.D. N.C. May 17, 2013).
filed the instant § 2255 Motion to Vacate through
counsel on June 24, 2016 with authorization from the Fourth
Circuit Court of Appeals to file this second or successive
§ 2255 petition. (Doc. Nos. 1, 3). He argues that his
§ 924(c) conviction is invalid because the predicate
offense of Hobbs Act robbery does not qualify as a
“crime of violence” under Johnson v. United
States, 135 S.Ct. 2551 (2015).
action was stayed for several years pursuant to United
States v. Ali, Fourth Cir. No. 15-4433, and United
States v. Simms, Fourth Cir. No. 15-4640. (Doc. No. 7).
Government has now filed a Motion to Dismiss, (Doc. No. 8),
arguing that the § 2255 Motion to Vacate is waived,
procedurally barred, and meritless. It argues that
Petitioner's voluntary waiver of his right to pursue
post-conviction relief in the guilty plea is enforceable,
that the claim is procedurally defaulted because the claim
could have been raised on direct appeal and Petitioner cannot
demonstrate cause and prejudice or actual innocence, and the
claim is meritless because the § 924(c) conviction is
based on Hobbs Act robbery which is a crime of violence under
§ 924(c)'s force clause pursuant to United
States v. Mathis, 932 F.3d 242, 266 (4th Cir.
filed a Response, (Doc. No. 11), arguing that there is
ambiguity regarding the § 924(c) predicate and that this
ambiguity should be construed against the Government as the
least severe offense which, in this case, is conspiracy to
commit Hobbs Act robbery. Petitioner argues that neither
Hobbs Act conspiracy, attempted Hobbs Act robbery, nor aiding
and abetting Hobbs Act robbery is a crime of violence so
Petitioner is actually innocent of that offense and his
§ 924(c) conviction is void. Petitioner argues that his
plea waiver is unenforceable because there was no crime of
violence, and therefore, no factual basis for the guilty plea
and enforcing the plea's post-conviction waiver would be
a miscarriage of justice. There is no procedural default
because the indictment failed to state an offense, which is a
jurisdictional defect that rendered the judgment void. Even
if procedural default applies, Petitioner argues that he can
demonstrate cause and prejudice and actual innocence.
Government argues in its Reply, (Doc. No. 14), that its
Motion to Dismiss should be granted because Petitioner
alleges in his § 2255 Motion to Vacate that his §
924(c) convictions were predicated on his use or possession
of a firearm in relation to a Hobbs Act robbery. (Doc. No. 1
at 6). This allegation is true, as demonstrated by the
Indictment, Plea Agreement PSR, and Judgment, and thus
Petitioner is entitled to no relief. The only basis for
relief in Petitioner's § 2255 Motion to Vacate is
that Hobbs Act robbery no longer qualifies as a crime of
violence under § 924(c)'s force clause, which has
been rejected by the Fourth Circuit in Mathis, 932
F.3d at 266. Petitioner's attempt to argue that he was
convicted of a § 924(c) offense based on a predicate
other than Hobbs Act robbery should be denied because he
failed to amend his § 2255 Motion to Vacate. Any attempt
to amend would be futile because the record does not support
his assertion that the § 924(c) predicate was actually
aiding and abetting Hobbs Act robbery and, in any event, that
offense is a valid Hobbs Act predicate. Petitioner's
argument about lack of subject-matter jurisdiction is
meritless, his appellate waiver bars the challenge to his
conviction, his sentence does not exceed the statutory
maximum, and his procedural default is not overcome by cause
and prejudice or actual innocence.
SECTION 2255 ...