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Jones v. United States

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

December 30, 2019

RAYMOND DUANE JONES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          ROBERT J. CONRAD, JR. UNITED STATES DISTRICT JUDGE.

         THIS 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. No. 8).

         I. BACKGROUND

         Petitioner 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).

         The 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).

         At the 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.

         Petitioner 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).

         In 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).

         Petitioner 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).

         This 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).

         The 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. 2019).

         Petitioner 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.

         The 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.

         II. SECTION 2255 ...


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