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Cotton v. United States

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

October 3, 2016

RODERICK ALLEN COTTON, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Civil Action No. 2:16cv323

          MEMORANDUM OPINION AND ORDER

          Raymond A. Jackson United States District Judge

         Roderick 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 DENIED.

         I. FACTUAL AND PROCEDURAL HISTORY

         On May 21, 2008, an Eastern District of Virginia Grand Jury returned an indictment charging Petitioner with twelve counts. ECF No. 1.

         Petitioner 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. § 924(c)(1)(A)(ii). Id.

         On 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.

         On June 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.

         In his § 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.

         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. 35.

         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 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 the sentence.

28 U.S.C. § 2255(a).

         In 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. ...


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