United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM DISMISSAL ORDER
REBECCA BEACH SMITH CHIEF JUDGE
matter comes before the court on the Petitioner's
"Motion to Vacate Conviction Under 28 U.S.C. §
2255" ("§ 2255 Motion"), filed by counsel
on June 15, 2016. ECF No. 191.
29, 2016, the court ordered the government to file responsive
pleadings to the Petitioner's § 2255 Motion within
sixty (60) days of the entry date of that order. ECF No. 195.
On August 29, 2016, the United States filed a "Motion to
Dismiss § 2255 Petition" ("Motion to
Dismiss"), which asserted that the Petitioner's
§ 2255 Motion is untimely under 28 U.S.C. §
2255(f), and that his claim under Johnson v. United
States, 135 S.Ct. 2551 (2015), lacks merit. ECF No. 204.
On September 9, 2016, the Petitioner, by counsel, filed the
"Petitioner's Response to Government's Motion to
Dismiss" ("Response"), which includes a
request to hold this proceeding in abeyance. ECF No. 205.
reasons below, the Petitioner's Response, requesting a
stay of this proceeding, is DENIED; the government's
Motion to Dismiss is GRANTED; and the Petitioner's §
22 55 Motion is DISMISSED.
March 8, 2011, the Petitioner pled guilty to Counts Two,
Three, and Five of the thirteen-count Superseding Indictment.
Count Two charged him with Interference with Commerce by
Means of Robbery, in violation of 18 U.S.C. §§
1951(a) and 2; and Counts Three and Five charged him with Use
of a Short-barreled Shotgun During a Crime of Violence, in
violation of 18 U.S.C. §§ 924(c)(1)(A), (B)(i) and
2. ECF No. 26. On June 14, 2011, the court sentenced the
Petitioner to a total term of four hundred twenty-six (426)
months imprisonment. ECF No. 87. The Petitioner appealed, and
the Court of Appeals for the Fourth Circuit affirmed the
convictions and sentence on October 12, 2012. ECF Nos. 120,
121. The Petitioner did not file a petition for a writ of
certiorari from the United States Supreme Court.
Petitioner has previously filed four habeas corpus petitions
pursuant to 28 U.S.C. § 2255, ECF Nos. 125, 137, 165,
186, and one motion pursuant to Rule 60(b) of the Federal
Rules of Civil Procedure, ECF No. 176, all of which the court
has denied. See ECF Nos. 126, 148, 166, 180, 188. On
June 15, 2016, the Fourth Circuit issued an Order granting
authorization to the Petitioner to file the instant §
2255 Motion. ECF No. 190.
The Petitioner's Abeyance Request
Petitioner requests that the § 2255 proceeding be held
in abeyance pending a decision from the United States Court
of Appeals for the Fourth Circuit as to whether Interference
with Commerce by Robbery ("Hobbs Act robbery"), in
violation of 18 U.S.C. §§ 1951(a) and 2, is a crime
of violence under 18 U.S.C. § 924(c)(3). Resp. at 1. A
decision from the Fourth Circuit will not result in the
relief the Petitioner seeks, even should the Fourth Circuit
determine that Hobbs Act robbery is not a crime of violence:
Only the Supreme Court can determine whether the residual
clause in § 924(c)(3) is unconstitutionally vague,
see 28 U.S.C. § 2255(f)(3); Dodd v. United
States, 545 U.S. 353, 357 (2005), and only the Supreme
Court can determine whether this new rule of constitutional
law is retroactively applicable on collateral review,
see 28 U.S.C. § 2244(b)(2)(A); Tyler v.
Cain, 533 U.S. 656, 662 (2001). Accordingly, the court finds
no reason to stay the proceeding in anticipation of a
decision from the Fourth Circuit on the issue of whether
Hobbs Act robbery is classified as a crime of violence, and
the request to hold this proceeding in abeyance is DENIED.
The Petitioner's § 2255 Motion and the
Government1s Motion to Dismiss
instant § 2255 Motion is untimely. The Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.
104-132, § 105, 110 Stat. 1214 (1996), imposes a
one-year statute of limitations on § 2255 motions.
Section 2255, as amended by AEDPA, provides in relevant part:
A 1-year period of limitation shall apply to a motion under
this section. The limitation period shall run ...