United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson United States District Judge
Allen Cotton, Jr, ("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
FACTUAL AND PROCEDURAL HISTORY
21, 2008, an Eastern District of Virginia Grand Jury returned
an indictment charging Petitioner with twelve counts. ECF No.
pled guilty to counts one, two, and twelve of the indictment.
ECF No. 29. Count one charged Petitioner with interference
with commerce by robbery, in violation of 18 U.S.C. §
1951. Id. Counts two and twelve charged Petitioner
with brandishing firearms during and in relation to a crime
of violence, in violation of 18 U.S.C. §
January 5, 2009, Petitioner was sentenced to a term of
eighty-four months imprisonment on count one, a term of
eighty-four months imprisonment on count two, and a term of
three hundred months imprisonment on count twelve, all to be
served consecutively. Id.
23, 2016, Petitioner, through counsel, filed the instant
Motion to Vacate Sentence under 28 U.S.C. § 2255
("§ 2255"). ECF No. 32. Petitioner's
§ 2255 Motion also requested that it be held in
abeyance, 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. Id. On July 13, 2016, the United States
Attorney's Office ("Respondent") filed a Motion
to Dismiss Petitioner's § 2255 Motion. ECF No. 35.
§ 2255 Motion, Petitioner argues that his convictions on
counts two and twelve, 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 he was convicted on counts two and
twelve, 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 his convictions on counts
two and twelve be vacated. Mot. Vacate 1-2, ECF No. 32.
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. 35.
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 States 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 attack, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. § 2255(a).
proceeding to vacate a judgment of conviction, the petitioner
bears the burden of proving his or her claim by a
preponderance of the evidence. Miller v. ...