United States District Court, E.D. Virginia, Newport News Division
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson, United stales District Judge.
Willie Davis ("Petitioner") has submitted a Motion
pursuant to Title 28, United States Code, Section 2255 to
Correct Sentence by a person in federal custody ("§
2255 Motion"). Having 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
FACTUAL AND PROCEDURAL HISTORY
November 12, 2008, an Eastern District of Virginia Grand Jury
returned an indictment charging Petitioner with four counts.
ECF No. 1.
pled guilty to counts one and three of the indictment. ECF
No. 19. Count one charged Petitioner with possession with
intent to distribute cocaine base, in violation of 21 U.S.C.
§ 841(a)(1). Count three charged Petitioner with felon
in possession of a firearm, in violation of 18 U.S.C. §
13, 2009, Petitioner was sentenced to a term of one hundred
ninety-two months imprisonment on count one and a term of one
hundred ninety-two months imprisonment on count three, to be
served concurrently. Id.
23, 2016, Petitioner, through counsel, filed the instant
Motion to Correct Sentence under 28 U.S.C. § 2255
("§ 2255"). ECF No. 63. On August 29, 2016,
the United States Attorney's Office
("Respondent") filed a response to Petitioner's
§ 2255 Motion, which asked the Court to deny
Petitioner's § 2255 Motion or, alternatively, to
hold the § 2255 Motion in abeyance, pending the Supreme
Court's decision in Beckles v. United States.
ECF No. 68. On September 23, 2016, Petitioner filed a reply
to Respondent, in which he requested that any re-sentencing
to which he is entitled "be delayed until the United
States Court of Appeals for the Fourth Circuit decides
United States v. Winston." ECF No. 71.
§ 2255 Motion, Petitioner argues that his sentence
should be corrected in light of the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015). Petitioner's argument is two-fold: 1) Petitioner
was sentenced as an "armed career criminal" under
the residual clause of the Armed Career Criminal Act (ACCA),
which was rendered void in Johnson; and 2)
Petitioner was also sentenced as a "career
offender" under the residual clause of United States
Sentencing Guidelines (U.S.S.G.) Section 4B1.2 (§
4B1.2), which Petitioner argues should also be considered
void in light of Johnson. Mot. Correct 1-2, ECF No.
63. Petitioner therefore requests that this Court
"vacate his entire sentence and re-sentence him on all
counts." Id. at 2-3.
response, Respondent argues that, while Petitioner's
sentence under the ACCA is void under Johnson, his
sentence under § 4B1.2 is not. Respondent also argues
that Petitioner was not harmed by the now-void ACCA sentence
because the same Sentencing Guidelines range would have
applied in this case regardless of whether Petitioner was
sentenced under the ACCA. Resp. 1-2, ECF No. 68.
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 v. United
States, 423 F.2d 526, 529 (4th Cir. 1970) (citing
Machibroda v. United Stales, 368 U.S. 487 (1962)).
Timeliness, Johnson, and the ACCA
§ 2255 motion is subject to a one-year statute of
limitations. 28 U.S.C. § 2255(f).Petitioner argues that
his motion is timely under subsection (f)(3), which states
that the one-year time limit begins on "the date on
which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review." 28 U.S.C. § 2255(f)(3).
Petitioner argues that the right he is asserting was
announced by the Supreme Court in Johnson v. United
States, 135 S.Ct. 2551 (2015).
was sentenced as an "armed career criminal" under
the Armed Career Criminal Act. The ACCA imposes a minimum
imprisonment sentence of fifteen years on those who violate
18 U.S.C. 922(g) (i.e., felon in possession of a firearm)
after having been previously convicted of three "violent
felon[ies] or serious drug offense[s]." 18 U.S.C. §
924(e)(1). A crime can qualify as a "violent
felony" in three ways. First, a crime is a violent
felony if it "has as an element the use, attempted use,
or threatened use of physical force against the person of
another." 18 U.S.C. § 924(e)(2)(B)(i). This is
known as the "force clause" of the ACCA.
a crime is a violent felony if it is "burglary, arson,
or extortion, [or] involves use of explosives." 18
U.S.C. § 924(e)(2)(B)(ii). This is known as the
"enumerated crimes clause." Finally, a crime is a
violent felony if it "involves conduct that presents a
serious potential risk of physical injury to another."
Id. This is known as the "residual clause"
of the ACCA.
Johnson v. United States, the Supreme Court held
that the residual clause of the ACCA is void because it is
unconstitutionally vague. Johnson, 135 S.Ct. at
2557-58. A defendant cannot be sentenced as an "armed
career criminal" if any of his prior convictions were
for crimes that only ...