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Prayer v. United States

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

October 25, 2016

DARIUS DEMARCO PRAYER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal Action No 2:11cr58

          MEMORANDUM OPINION AND ORDER

          Raymond A. Jackson, United Mates District Judge

         Darius Demarco Prayer ("Petitioner") has submitted a Motion pursuant to Title 28, United States Code, Section 2255 to Vacate Sentence by a Person in Federal Custody ("§ 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, and Respondent's Motion to Dismiss is GRANTED.

         I. FACTUAL AND PROCEDURAL HISTORY

         On April 8, 2011, a Grand Jury in the Eastern District of Virginia indicted Petitioner with five counts. ECF No. 3. On September 14, 2011, Petitioner pled guilty to Count One and Count Twenty-Five of the indictment. ECF No. 280. Count One charged the Petitioner with participating directly or indirectly in the affairs of an enterprise, engaged in activities affecting interstate commerce, through a pattern of racketeering activity, in violation of Title 18 U.S.C. § 1962(c). Id. Count Twenty-Five charged the Petitioner with Possession of a Firearm in Furtherance of a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A). Id. On January 6, 2012, the Court adjudged Petitioner and found him guilty of Count One and Count Twenty-Five, and sentenced him to a term of 72 months for Count One and 84 months for Count Twenty-Five, to be served consecutively. ECF No. 421.

         On January 12, 2015, Petitioner filed a Motion to Reduce Sentence. ECF No. 476. On June 15, 2015, the Court denied Petitioner's motion. On April 28, 2016, Petitioner filed a Motion to Vacate under 28 U.S.C. § 2255 and the Supreme Court's ruling in Johnson v. United States, __U.S.__, 135 S.Ct. 2551 (2015), and Welch v. United States, __U.S.__, 136 S.Ct. 1257 (2016). ECF No. 498. On July 8, 2016, the Court appointed the Federal Public Defender to represent Petitioner in this Matter. ECF No. 516.

         On July 21, 2016, Respondent filed a Motion to Dismiss Petitioner's challenge to his sentence under 18 U.S.C. § 924(c). ECF No. 528. Specifically, Respondent argued Petitioner is not entitled to file a motion under § 2255 because the Supreme Court has not yet recognized § 924(c)(3)(B) as unconstitutionally vague. According to Respondent, the Johnson holding does not invalidate § 924(c)(3)(B), leaving Petitioner without a cognizable right to assert on collateral review. ECF No. 528.

         On August 2, 2016, Petitioner, through legal counsel, filed a response stating, "Undersigned counsel has reviewed Petitioner's pro se motion, the Presentence Report ("PSR"), docket sheet, and other relevant documents. After evaluation of the Petitioner's pro se motion pursuant to § 2255 seeking relief under Johnson, undersigned counsel rests on the Petitioner's motion and submits no additional arguments at this time." ECF No. 101.

         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 v. United States, 423 F.2d 526, 529 (4th Cir. 1970) (citing Machibroda v. United States, 368 U.S. 487 (1962)).

         III. ...


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