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McCoy v. United States

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

October 31, 2016

THOMAS F. McCOY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal Action No 2:03crl97-6

          MEMORANDUM OPINION AND ORDER

          Raymond A. Jackson, United Males District Judge.

         Thomas F. McCoy (''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.

         I. FACTUAL AND PROCEDURAL HISTORY

         On December 18, 2003, an Eastern District of Virginia Grand Jury returned an indictment charging Petitioner with twenty-five counts. ECF No. 1. On March 24, 2004, Petitioner pled guilty to counts eight, nine, forty-seven, and forty-eight of the indictment. ECF No. 75. Counts eight and forty-seven each charged Petitioner with interference with commerce by threat or violence, in violation 18 U.S.C. § 1951. Counts nine and forty-eight each 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).

         On June 27, 2016, Petitioner filed a pro se Motion to Vacate Sentence under 28 U.S.C. § 2255 ("§ 2255"). ECF No. 216. On July 8, 2016, the Court ordered the Federal Public Defender to represent Petitioner in this matter. ECF No. 219. On September 2, 2016, Petitioner, through appointed counsel, responded to the Court's order and supplemented the arguments he made in his § 2255 Motion. ECF No. 235. 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" under 18 U.S.C. § 1951(a) is a crime of violence. Id. On September 6, 2016, the United States Attorney's Office ("Respondent") filed a Motion to Dismiss Petitioner's § 2255 Motion. ECF No. 239.

         In his § 2255 Motion and the supplementing response, Petitioner argues that his convictions on counts nine and forty-eight, under 18 U.S.C. § 924(c), should be vacated in light of the Supreme Court's decision in Johnson v. United States, 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 counts nine and forty-eight, 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 counts nine and forty-eight be vacated. Pet' r's Resp. to Order 2, ECF No. 235.

         In response, Respondent 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 No. 239.

         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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