United States District Court, E.D. Virginia, Norfolk Division
FLOYD C. JACOBS, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal Action No. 2:03cr197-7
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson United States District Judge
C. Jacobs ("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 Parties7
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
December 18, 2003, an Eastern District of Virginia Grand Jury
returned an indictment charging Petitioner with five counts.
ECF No. 1. On March 16, 2004, Petitioner pled guilty to
counts two, three, and four of the indictment. ECF No. 59.
Count two charged Petitioner with interference with commerce
by threat or violence, in violation 18 U.S.C. § 1951.
Count three charged Petitioner with using, carrying and
possessing a firearm during and in relation to, and in
furtherance of, a crime of violence, in violation of 18
U.S.C. § 924(c)(1)(A)(ii). Count four charged Petitioner
with carjacking, in violation of 18 U.S.C. § 2119.
17, 2016, Petitioner filed a pro se Motion to Vacate Sentence
under 28 U.S.C. § 2255 ("§ 2255"). ECF
No. 210. On June 30, 2016, Petitioner filed a motion to amend
his § 2255 Motion. ECF No. 217. On July 11, 2016, the
Court ordered the Federal Public Defender to represent
Petitioner in this matter. ECF No. 222. On September 9, 2016,
the United States Attorney's Office
("Respondent") filed a Motion to Dismiss
Petitioner's § 2255 Motion. ECF No. 240. On
September 9, 2016, Petitioner, through appointed counsel,
responded to the Court's order and supplemented the
arguments he made in his § 2255 Motion. ECF No. 241.
Petitioner's response also requested that his § 2255
Motion be held in abeyance, pending a decision from the
United States Court of Appeals for the Fourth Circuit
regarding whether Hobbs Act robbery is a "crime of
violence" under § 924(c). Id.
§ 2255 Motion, Petitioner argues that his convictions on
count three, under 18 U.S.C. § 924(c), should be vacated
in light of the Supreme Court's decision in Johnson
v. United Stales, 135 S.Ct. 2551 (2015). Specifically,
Petitioner argues that the statutory language held
unconstitutionally vague in Johnson is
"materially indistinguishable" from the statutory
language under which he was convicted on count three, i.e.,
the residual clause of 18 U.S.C. § 924(c)(3)(B)
("§ 924(c)(3)(B)"). Therefore, according to
Petitioner, Johnson also invalidates §
924(c)(3)(B), requiring that his conviction on count three be
vacated. Pet'r's Resp. to Order 1-3, ECF No. 241.
argues that 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. Mot. Dismiss 3-4, ECF
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 ...