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Adams v. United States

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

November 15, 2016

UNITED STATES OF AMERICA, Respondent. Civil Action No. 2:16cv337



         This matter comes before the Court on a motion submitted by Tracy Wendell Adams ("Petitioner") pursuant to Title 28, United States Code, Section 2255 to vacate conviction 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.


         On October 22, 2008, an Eastern District of Virginia grand jury named Petitioner in a three-count indictment. ECF No. 7. On November 6, 2008, Petitioner pled guilty to all counts of the indictment. Count one charged Petitioner with tampering with a witness, in violation of 18 U.S.C. §§ 1512(a)(1)(A) and (a)(2)(A). Count two charged Petitioner with Retaliating Against a Witness/Informant, in violation of 18 U.S.C. §§ 1513(a)(1)(B) and (a)(2)(A). Count three charged Petitioner with Use of a Firearm Resulting in Death, in violation of 18 U.S.C. §§ 924(c) and (j)- ECF No. 17. On February 19, 2009, Petitioner was sentenced to life imprisonment on each of the counts, all to be served concurrently. ECF No. 29.

         On June 24, 2016, Petitioner, through appointed counsel, filed the instant motion to vacate his conviction under 28 U.S.C. § 2255. ECF No. 48. On October 3, 2016, the United States Attorney ("Respondent") filed a motion to dismiss Petitioner's § 2255 motion. ECF No. 53. In his § 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 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 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. Mot. Vacate 1-3, ECF No. 48.

         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. 53.


         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 Stales, 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 Petition 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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