United States District Court, E.D. Virginia, Newport News Division
OPINION & ORDER
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.
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
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.
timely filed his Motion to Vacate, Set Aside or Correct
Sentence pursuant to 28 U.S.C. § 2255 on June 10,
2016. 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.
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.
U.S.C. § 2255: MOTION TO VACATE, SET ASIDE, OR CORRECT
Standard of Review
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).
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
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).
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).
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)).
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 ...