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Torrence v. United States

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

December 6, 2016

TANYA YOLANDA TORRENCE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. CRIMINAL ACTION No. 2:06crl60

          MEMORANDUM OPINION AND ORDER

          Raymond A. Jackson United States District Judge

         This matter comes before the court on a motion submitted by Tanya Yolanda Torrence ("Petitioner") pursuant to Title 28, United States Code, Section 2255 to Vacate 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 DENIED.

         I. FACTUAL AND PROCEDURAL HISTORY

         On November 16, 2006, an Eastern District of Virginia Grand Jury returned an indictment charging Petitioner with four counts. ECF No. 9. On March 13, 2007, Petitioner pled guilty to count four of the indictment. ECF No. 17. Count four charged Petitioner with using a firearm in relation to a crime of violence, in violation 18 U.S.C. § 924(c). On October 9, 2007, the Court sentenced Petitioner to a term of six hundred months imprisonment on count four. ECF No. 37.

         On June 27, 2016, counsel for Petitioner filed a Motion to Vacate Sentence under 28 U.S.C. § 2255 ("§ 2255"). ECF No. 41. On September 7, 2016, the United States Attorney ("Respondent") filed a Motion to Dismiss Petitioner's challenge to her conviction under 18 U.S.C. § 924(c). ECF No. 44. Petitioner responded to Respondent's Motion to Dismiss on December 2, 2016. ECF No. 47.

         In her § 2255 Motion, Petitioner argues that her conviction on count four, 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 she was convicted on count four, 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 her conviction on count four be vacated. Mot. Vacate 1-2, ECF No. 41.

         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 1-2, ECF No. 44.

         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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