United States District Court, E.D. Virginia, Norfolk Division
Plaintiff, represented by William David Muhr, United States
MEMORANDUM OPINION AND ORDER
RAYMOND A. JACKSON, District Judge.
Tyrone Byron ("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
November 8, 2011, the United States Attorney's Office
("Respondent") filed a criminal complaint against
Petitioner. ECF No. 1. On November 16, 2011, an Eastern
District of Virginia Grand Jury returned an indictment
charging Petitioner with five counts. ECF No. 9.
March 13, 2012, Petitioner pled guilty to counts two and
three of the indictment. ECF No. 67. Count two charged
Petitioner with interference with commerce by robbery, in
violation of 18 U.S.C. Â§Â§ 1951(a) and 2. Count three charged
Petitioner with use of a firearm during a crime of violence,
in violation of 18 U.S.C. Â§Â§ 924(c)(1)(A)(ii) and 2. ECF No.
18, 2012, Petitioner was sentenced to a term of sixty-six
months imprisonment on count two and a term of eighty-four
months imprisonment on count three, all to be served
consecutively. ECF No. 119. The sentence was subsequently
20, 2016, Petitioner, through counsel, filed the instant
Motion to Vacate Sentence under 28 U.S.C. Â§ 2255 ("Â§
2255"). ECF No. 190. Petitioner's Â§ 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. Â§ 1951(a) is a crime of violence. Id. On
July 21, 2016, Respondent filed a Motion to Dismiss
Petitioner's Â§ 2255 Motion. ECF No. 197.
Â§ 2255 Motion, Petitioner argues that his conviction on count
three, 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 he was convicted on count three, 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 his conviction on count three be vacated. Mot. Vacate
1-2, ECF No. 190.
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. 197.
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 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 ...