United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson United States District Judge
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.
FACTUAL AND PROCEDURAL HISTORY
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.
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
§ 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.
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.
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 ...