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Hayes v. United States

United States District Court, E.D. Virginia, Newport News Division

March 13, 2017

WINCHAUS HAYES, Petitioner
v.
UNITED STATES OF AMERICA, Respondent. Civil N0. 4:16CV54

          OPINION & ORDER

         This matter comes before the Court upon Winchaus Hayes' ("Petitioner") Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Section 2255 Motion"). ECF No.41.

         I. PROCEDURAL HISTORY

         On July 16, 2013, Petitioner was named in a four count indictment charging him with: (1) Conspiracy to Commit Bank Robbery, in violation of 18 U.S.C. § 371 (Count One); and (2) three counts of Bank Robbery, in violation of 18 U.S.C. §§ 2113(a) and (2) (Counts Two-Four). ECF No. 1. On October 7, 2013, Petitioner pleaded guilty before Magistrate Judge Tommy E. Miller to all counts of the indictment. ECF No. 24.

         On January 6, 2014, this Court sentenced Petitioner to a term of imprisonment of 151 months. ECF No. 37. This term consisted of 60 months on Count One and 151 months on each of Counts Two-Four, all to be served concurrently. Id. Petitioner's sentence was based in part on the Presentence Investigation Report's ("PSR") classification of Petitioner as a career offender under Section 4Bl.l(a) of the United States Sentencing Guidelines ("USSG") because: (1) "the instant offense is a felony that is a crime of violence" and (2) Petitioner had previously been convicted of two prior "crime[s] of violence" or "controlled substance offense[s]." PSR, ECF No. 32 ¶ 78. The two prior convictions were felony convictions for: (1) Possession with Intent to Distribute Cocaine; and (2) Robbery. Id. See also ECF Nos. 37, 38.

         Petioner timely filed his Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 on June 10, 2016.[1] ECF No. 41. On June 17, 2016, this Court ordered the Federal Public Defender to provide representation to the Petitioner for the purposes of his Section 2255 Motion. ECF No. 42. On June 28, 2016, counsel for Petitioner filed a Memorandum in Support of Petitioner's Section 2255 Motion. ECF No. 44. On September 19, 2016, upon the Government's Motion, ECF No. 45, the Court held Petitioner's Motion in abeyance pending the Supreme Court's decision in Beckles v. United States. 2016 WL 1029080 (June 27, 2016). ECF No. 46.

         In his Motion and Memorandum, ECF Nos. 41, 44, Petitioner contends that his sentence was imposed in violaton of the Constitution. In support of this, Petitioner argues that, following the rulings in Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016), his bank robbery and robbery convictions-which triggered the career offender enhancement under USSG § 4Bl.l(a) (alongside the controlled substance offense)- can no longer be considered crimes of violence. ECF No. 44. Therefore, Petitioner argues, he can no longer be categorized as a career offender under USSG § 4B1.1. ECF No. 44, at 4. Altogether, Petitioner asks the Court to resentence him without the application of the USSG § 4B1.1 career offender enhancement. ECF No. 44, at 19.

         II. 28 U.S.C. § 2255: MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

         A. Standard of Review

         Collateral review created by 28 U.S.C. § 2255 allows a prisoner in federal custody to challenge the legality of a federal sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing Court lacked jurisdiction; (3) the sentence imposed was in excess of the maximum amount authorized by law; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255. On such grounds, the petitioner may move the court to vacate, set aside, or correct a sentence. The Supreme Court has held that Section 2255 is the appropriate vehicle by which a federal prisoner may challenge both a conviction and the post-conviction sentence. Davis v. United States, 417 U.S. 333, 343-44 (1974).

         A district court may dismiss a petitioner's Section 2255 motion in several clearly defined circumstances. The statute provides that, "[u]nless the motion and the files and the records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney [and] grant a prompt hearing thereon ...." 28 U.S.C. § 2255. Thus, as a corollary, a court may dismiss a Section 2255 motion if it is clearly inadequate on its face and if the petitioner would not be entitled to relief assuming the facts alleged in the motion are true. Where the record refutes a petitioner's allegations, dismissal is appropriate. Likewise, if the motion can be resolved exclusively on issues of law, and no questions of fact exist, then summary dismissal is appropriate without an evidentiary hearing. See Green v. United States, 65 F.3d 546, 548-49 (6th Cir. 1995) (finding an evidentiary hearing unnecessary because all claims by petitioner alleged legal errors).

         When filing a Section 2255 petition to vacate, set aside, or correct a sentence, a petitioner "bears the burden of proving his grounds for collateral attack by a preponderance of the evidence." Hall v. United States. 30 F.Supp.2d 883, 889 (E.D. Va. 1998) (citing Vanater v. Boles, 377 F.2d 898, 900 (4th Cir. 1967); Miller v. United States. 261 F.2d 546, 547 (4th Cir. 1958)). If the motion when viewed against the record shows that the petitioner is entitled to no relief, the court may summarily deny the motion. Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970). A motion under Section 2255 may not "do service for an appeal." United States v. Fradv. 456 U.S. 152, 165 (1982).

         Any matter that could have been asserted either at trial or on appeal but was not so asserted is not appropriate for review on motion under Section 2255 without a showing of "cause" sufficient to excuse the procedural fault and a showing of "actual prejudice" resulting from the error. Fradv. 456 U.S. at 167-68. "The existence of cause for procedural default must turn on something external to the defense, such as the novelty of the claim or a denial of effective assistance of counsel." United States v. Mikalaiunas. 186 F.3d 490, 493 (4th Cir. 1999). In addition, a "showing that the factual or legal basis for a claim was not reasonably available"- such as a new rule of constitutional law made retroactive to cases on collateral review-"would constitute cause under this standard." Murray v. Carrier, 477 U.S. 478, 488 (1986) (citations omitted). See also Reed v. Ross, 468 U.S. 1, 17 (1984) (discussing three situations in which a new constitutional rule might emerge).

         "To show actual prejudice, [a petitioner] must demonstrate that the error worked to his 'actual and substantial disadvantage.'" Satcher v. Pruett. 126 F.3d 561, 572 (4th Cir. 1997) (quoting Murray. 477 U.S. at 494). That is, a showing of "actual prejudice" requires a petitioner to establish that the error had a "substantial and injurious effect or influence in determining the jury's verdict." Fry v. Pliler. 551 U.S. 112, 116 (2007) (quoting Brecht v. Abrahamson. 507 U.S. 619, 631 (1993)).

         Absent a showing of cause and prejudice, a petitioner may raise a procedurally defaulted claim in a collateral attack only upon a showing that a "miscarriage of justice would result from the refusal of the court to entertain the collateral attack." Mikalaiunas, 186 F.3d at 493 (citing Fradv, 456 U.S. at 167-68; United States v. Mavbeck.23 F.3d 888, 891-92 (4th ...


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