United States District Court, W.D. Virginia, Danville Division
MICHAEL D. BLACKWELL, Petitioner,
UNITED STATES OF AMERICA, Respondent.
JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on the United States' Motion
to Dismiss Petitioner's motion for relief pursuant to 28
U.S.C. § 2255 [ECF No. 59], as well as the United
States' motion to hold Petitioner's § 2255
Motion partially in abeyance [ECF No. 58]. Petitioner does
not object to holding his Motion to Vacate partially in
abeyance (see Reply to Gov'ts Mot. to Hold
Petition Partially in Abeyance, Sep. 1, 2016 [ECF No. 60]),
so that motion will be granted. The parties have fully
briefed the issues raised in the United States' Motion to
Dismiss, so that motion is ripe for consideration. For the
reasons set forth herein, the United States' Motion to
Dismiss will be granted in part.
STATEMENT OF FACTS AND PROCEDURAL BACKGROUND
November 16, 2010, Petition Michael Blackwell entered a
guilty plea to knowingly possessing a firearm after being
convicted of a felony, in violation of 18 U.S.C. §
922(g)(1) and § 924(e). Thereafter, on May 17, 2011,
Petitioner was sentenced to 180 months imprisonment. This
sentence was mandated by the Armed Career Criminal Act
(“ACCA”), which requires a 15 year sentence where
a defendant has “three previous convictions by any
court . . . for a violent felony . . . committed on occasions
different from one another.” 18 U.S.C. §
Presentence Report reflects that Petitioner's prior
convictions for breaking and entering, robbery, unlawful
wounding, and statutory burglary constituted the necessary
“predicate offenses” to trigger the ACCA's
mandatory 15-year sentence. See United States v.
Gambill, 492 F. App'x 427, 429 (4th Cir. 2012) (per
curiam) (holding that a Virginia conviction for
“breaking and entering” qualified as
“generic burglary”); United States v.
Foster, 662 F.3d 291, 293-94 (4th Cir. 2011) (holding
that a conviction under the Virginia burglary statutes could
qualify as “generic burglary” under the ACCA).
Petitioner was sentenced accordingly and, on June 23, 2016,
filed the present Motion for Relief under 28 U.S.C. §
STANDARD OF REVIEW
to 28 U.S.C. § 2255, a prisoner may seek to set aside,
correct, or vacate a sentence on the grounds “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 . . . .” 28
U.S.C. § 2255. “Unless it is clear from the
pleadings, files, and records that the prisoner is not
entitled to relief, § 2255 makes an evidentiary hearing
mandatory.” United States v. Rashaad, 249 F.
App'x 972, 973 (4th Cir. 2007) (per curiam).
question before the court is purely one of law, and the facts
are adequately presented by the underlying record and the
briefs of the parties. A hearing is not required to dispose
of this discrete legal issue.
the ACCA, “a defendant may be sentenced as an Armed
Career Criminal (and thus subject to a fifteen-year mandatory
minimum sentence) if he violates 18 U.S.C. § 922(g) and
has at least three prior convictions for violent felonies or
serious drug offenses.” Foster, 662 F.3d at
291. As is relevant here, at the time of Petitioner's
sentencing, the ACCA defined “violent felony” as
[T]he term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year . .
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or (ii)
is burglary, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious
potential risk of physical injury to another . . . .
Id. § 924(e)(2)(B). “These three
clauses of § 924(e)(2)(B) are often
referred to respectively as (i) the ‘force clause,
' (ii) the ‘enumerated crimes clause, ' and
(iii) the ‘residual clause.'” United
States v. Major, No. 1:16-cv-324, 2016 WL 4059662,
at *2 (E.D. Va. July 27, 2016).
this year, the Supreme Court held that the “residual
clause” of the ACCA was unconstitutionally vague, and
that “the indeterminacy of the wide-ranging inquiry
required by the residual clause denied both fair notice to
defendants and invites arbitrary enforcement by judges.
Increasing a defendant's sentence under the clause denies
due process of law.” Johnsonv. United
States, 135 S.Ct. 2551, 2557 (2015). Petitioner's
argument here is that his convictions for burglary and
breaking and entering were ACCA predicate offenses under the
“residual clause.” Because the Supreme Court has
held that clause unconstitutional, and because that ...