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Parker v. United States

United States District Court, E.D. Virginia, Norfolk Division

September 23, 2016

SHALONDA KAY PARKER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          USA, Plaintiff, represented by Sherrie S. Capotosto, United States Attorney's Office.

          MEMORANDUM OPINION AND ORDER

          RAYMOND A. JACKSON, District Judge.

         Shalonda 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 ("§ 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 § 2255 Motion is DENIED.

         I. FACTUAL AND PROCEDURAL HISTORY

         On 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 No. 15.

         On 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. § 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.

         On 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 subsequently amended.

         On April 27, 2016, Petitioner, through appointed counsel, filed the instant Motion to Vacate Sentence under 28 U.S.C. § 2255 ("§ 2255"). ECF No. 36. On July 18, 2016, Respondent filed a Motion to Dismiss Petitioner's § 2255 Motion. ECF No. 40. On September 1, 2016, Petitioner filed a Motion to Hold in Abeyance her § 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. § 1951(a) is a crime of violence. ECF No. 43.

         In her § 2255 Motion, Petitioner argues that her conviction on count two, under 18 U.S.C. § 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. § 924(c)(3)(B) ("§ 924(c)(3)(B)"). Therefore, according to Petitioner, Johnson also invalidates § 924(c)(3)(B), requiring that her conviction on count two be vacated. Mot. Vacate 1-2, ECF No. 36.

         In response, Respondent argues that Petitioner is not entitled to file a motion under § 2255 because the Supreme Court has not yet recognized § 924(c)(3)(B) as unconstitutionally vague. According to Respondent, the Johnson holding does not invalidate § 924(c)(3)(B), leaving Petitioner without a cognizable right to assert on collateral review. Mot. Dismiss 1, ECF No. 40.

         II. LEGAL STANDARDS

         When a petitioner in federal custody wishes to collaterally attack his sentence or conviction, the appropriate motion is a § 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 ...

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