United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
Raymond A Jackson United stales District Judge.
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.
FACTUAL AND PROCEDURAL HISTORY
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.
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.
§ 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no longer valid in light of the Supreme Court's decision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.
response, Respondent argues that "Petitioner's case
is unaffected by the Johnson decision." Resp.
3, ECF No. 70.
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
28 U.S.C. § 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. United
States, 261 F.2d 546, 547 (4th Cir. 1958).
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).
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 ...