United States District Court, E.D. Virginia, Norfolk Division
Plaintiff, represented by Sherrie S. Capotosto, United States
MEMORANDUM OPINION AND ORDER
RAYMOND A. JACKSON, District Judge.
Kay Parker("Petitioner") has submitted a Motion
pursuant to Title 28, United States Code, Section 2255 to
Vacate Sentence by a Person in Federal Custody ("Â§ 2255
Motion"). Having thoroughly reviewed the Parties'
filings in this case, the Court finds this matter is ripe for
judicial determination. For the reasons set forth below,
Petitioner's Â§ 2255 Motion is DENIED.
FACTUAL AND PROCEDURAL HISTORY
September 22, 2014, the United States Attorney's Office
("Respondent") filed a criminal information
charging Petitioner with two counts. ECF No. 14. On September
30, 2014, Petitioner waived her right to a prosecution by
indictment and consented to a proceeding by information. ECF
September 30, 2014, Petitioner pled guilty to counts one and
two of the information. ECF No. 16. Count one charged
Petitioner with conspiracy to interfere with commerce by
robbery, in violation of 18 U.S.C. Â§ 1951(a). Count two
charged Petitioner with brandishing a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C.
924(c)(1)(A)(ii). ECF No. 17.
February 19, 2015, Petitioner was sentenced to a term of
sixty months imprisonment on count one and a term of
eighty-four months imprisonment on count two, all to be
served consecutively. ECF No. 30. The sentence was
April 27, 2016, Petitioner, through appointed counsel, filed
the instant Motion to Vacate Sentence under 28 U.S.C. Â§ 2255
("Â§ 2255"). ECF No. 36. On July 18, 2016,
Respondent filed a Motion to Dismiss Petitioner's Â§ 2255
Motion. ECF No. 40. On September 1, 2016, Petitioner filed a
Motion to Hold in Abeyance her Â§ 2255 Motion, pending a
decision from the United States Court of Appeals for the
Fourth Circuit regarding whether "Hobbs Act
robbery" under 18 U.S.C. Â§ 1951(a) is a crime of
violence. ECF No. 43.
Â§ 2255 Motion, Petitioner argues that her conviction on count
two, under 18 U.S.C. Â§ 924(c), should be vacated in light of
the Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015). Specifically, Petitioner
argues that the statutory language held unconstitutionally
vague in Johnson is "materially
indistinguishable" from the statutory language under
which she was convicted on count two, i.e., the residual
clause of 18 U.S.C. Â§ 924(c)(3)(B) ("Â§
924(c)(3)(B)"). Therefore, according to Petitioner,
Johnson also invalidates Â§ 924(c)(3)(B), requiring
that her conviction on count two be vacated. Mot. Vacate 1-2,
ECF No. 36.
response, Respondent argues that Petitioner is not entitled
to file a motion under Â§ 2255 because the Supreme Court has
not yet recognized Â§ 924(c)(3)(B) as unconstitutionally
vague. According to Respondent, the Johnson holding
does not invalidate Â§ 924(c)(3)(B), leaving Petitioner
without a cognizable right to assert on collateral review.
Mot. Dismiss 1, ECF No. 40.
petitioner in federal custody wishes to collaterally attack
his sentence or conviction, the appropriate motion is a Â§
2255 motion. United States v. Winestock, 340 F.3d
200, 203 (4th Cir. 2003). Section 2255 of Title 28 of the
United Stales Code governs post-conviction relief for federal
prisoners. It provides in pertinent part;
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral ...