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Phillips v. United States

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

October 11, 2016

CHRISTOPHER AARON PHILLIPS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal Action No. 2:11cr198

          MEMORANDUM OPINION AND ORDER

          Raymond A Jackson United stales District Judge.

         Christopher Aaron Phillips ("Petitioner") has submitted a Motion pursuant to Title 28, United States Code, Section 2255 to Vacate and Correct Sentence ("§ 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 October 26, 2011, the United States Attorney's Office ("Respondent") filed a criminal complaint against Petitioner. ECF No. 4. On February 8, 2012, an Eastern District of Virginia Grand Jury returned an indictment charging Petitioner with seven counts. ECF No. 30. On May 8, 2012, Petitioner pled guilty to count two of the indictment. ECF No. 47. Count two charged Petitioner with the possession and transfer of machine guns, in violation 18 U.S.C. § 922(o). ECF No. 30. On September 6, 2012, the Court sentenced Petitioner to a term of sixty-three months imprisonment on count two. ECF No. 61.

         On March 25, 2016, Petitioner filed a pro se Motion to Vacate Sentence under 28 U.S.C. § 2255 ("§ 2255"). ECF No. 65. On July 8, 2016, the Court ordered the Federal Public Defender to represent Petitioner in this matter. ECF No. 66. On September 2, 2016, the Federal Public Defender responded to the Court's order and rested on the arguments in Petitioner's § 2255 Motion. ECF No. 69. On September 2, 2016, Respondent responded to Petitioner's § 2255 Motion. ECF No 70.

         In his § 2255 Motion, Petitioner "challenge[s] the violence category associated with this charge." Petitioner argues that his conviction is partially due to the Court placing him in a "violence category" that is no longer valid in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Mot. Vacate 4, ECF No. 65.

         In response, Respondent argues that "Petitioner's case is unaffected by the Johnson decision." Resp. 3, ECF No. 70.

         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. United States, 261 F.2d 546, 547 (4th Cir. 1958).

         Motions under § 2255 "will not be allowed to do service for an appeal." Sunal v. Large, 332 U.S. 174, 178 (1947). For this reason, issues already fully litigated on direct appeal may not be raised again under the guise of a collateral attack. Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976).

         When deciding a § 2255 motion, the Court must promptly grant a hearing "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). Whether a hearing is mandatory for a § 2255 Motion and whether petitioner's presence is required at the hearing is within the district court's sound discretion and is reviewed for abuse of discretion. Raines ...


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