United States District Court, E.D. North Carolina, Southern Division
MALCOL'M J. HOWARD, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on petitioner's motion to
vacate under 28 U.S.C. § 2255, [DE #195], and the
government's motion to dismiss petitioner's motion to
vacate, [DE #243], to which petitioner responded, [DE #251].
August 10, 2015, pursuant to a signed Memorandum of Plea
Agreement, petitioner pled guilty to robbery of a business
engaged in interstate commerce, and aiding and abetting, in
violation of 18 U.S.C. §§ 1951 and 2 (Count One);
brandishing and possessing a firearm during and in relation
to a crime of violence, and aiding and abetting, in violation
of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Count Two);
and felon in possession of a firearm and ammunition, and
aiding and abetting, in violation of 18 U.S.C. §§
922(g), 924(a)(2), and 2 (Count Five). Petitioner was
sentenced by this court to a total term of imprisonment of
120 months on February 9, 2016. Petitioner did not appeal.
October 27, 2016, petitioner, through counsel, filed the
instant motion to vacate pursuant to 28 U.S.C. § 2255,
[DE #195], arguing that Hobbs Act Robbery, in violation of 18
U.S.C. § 1951, no longer qualifies as a crime of
violence to support his conviction under 18 U.S.C. §
924(c) in light of the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551
(2015). On December 15, 2016, this court
stayed the matter pending the Fourth Circuit's resolution
in United States v. Walker, 934 F.3d 375 (4th Cir.
2019) and United States v. Simms, 914 F.3d 229 (4th
Cir. 2019). [DE #212]. On October 24, 2019, this court lifted
the stay in light of the disposition of those cases and
directed the government to file an answer or otherwise
respond to petitioner's § 2255 motion. [DE #241].
This matter is ripe for adjudication.
Supreme Court recently invalidated the residual clause of the
crime of violence definition under 18 U.S.C. §
924(c)(3)(B). United States v. Davis, 139 S.Ct.
2319, 2323-24 (2019). The precise question remaining before
the court is whether Hobbs Act Robbery is a crime of violence
under the force clause of 18 U.S.C. § 924(c)(3)(A). The
Fourth Circuit has recently decided this issue. United
States v. Mathis, 932 F.3d 242, 266 (4th Cir. 2019)
(“Accordingly, we conclude that Hobbs Act robbery
constitutes a crime of violence under the force clause of
Section 924(c).”) (citing United States v.
Garcia-Ortiz, 904 F.3d 102, 109 (1st Cir. 2018);
United States v. Hill, 890 F.3d 51, 60 (2d Cir.
2018); United States v. Rivera, 847 F.3d 847, 849
(7th Cir. 2017); In re Fleur, 824 F.3d 1337, 1340-41
(11th Cir. 2016)) (footnote omitted).
in light of Mathis, defendant's claim is without
foregoing reasons, the government's motion to dismiss,
[DE #243], is GRANTED, and petitioner's motion to vacate,
[DE #195], is DISMISSED. The clerk is directed to close this
certificate of appealability shall not issue absent "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). A petitioner
satisfies this standard by demonstrating that reasonable
jurists would find that an assessment of the constitutional
claims is debatable and that any dispositive procedural
ruling dismissing such claims is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). A
reasonable jurist would not find this court's dismissal
of Petitioner's § 2255 Motion debatable. Therefore,
a Certificate of Appealability is DENIED.
 In the Johnson decision, the
Supreme Court of the United States invalidated the residual
clause found in 18 U.S.C. § 924(e)(2)(B)(ii)
(“Armed Career Criminal Act” or
“ACCA”). Johnson, 135 S.Ct. at 2557. In
Welch v. United States, 136 S.Ct. 1257, 1265 (2016),
the Supreme Court held the rule pronounced in
Johnson is retroactively applicable on collateral