United States District Court, E.D. Virginia, Norfolk Division
Plaintiff, represented by Kevin M. Comstock, United States
MEMORANDUM OPINION AND ORDER
RAYMOND A. JACKSON, 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 ("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
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. Â§ 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. Â§ 924(c)(1)(A)(ii).
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. Â§ 2255 ("Â§
2255"). ECF No. 32. 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 13, 2016, the United States Attorney's Office
("Respondent") filed a Motion to Dismiss
Petitioner's Â§ 2255 Motion. ECF No. 35.
Â§ 2255 Motion, Petitioner argues that his convictions on
counts two and twelve, 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 counts two and
twelve, 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 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 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. 35.
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 attack, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. Â§ 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. ...