United States District Court, E.D. Virginia, Alexandria Division
C. CACHERIS UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on the Motions to Vacate under 28
U.S.C. § 2255 [Dkts. 123, 129] and Motions to Amend
Petition [Dkts. 136, 141] filed by Petitioner Bobby E. Hazel.
Also before the Court is the United States' Motion to
Dismiss Defendant's 2255 Petition [Dkt. 132]. For the
reasons that follow, the Court will deny Petitioner's
various Motions and grant the United States' Motion to
February 11, 1993, a federal grand jury found Petitioner
guilty of first degree murder in violation of 18 U.S.C.
§§ 1111 and 2, as well as possession of a dangerous
weapon by a prisoner in violation of 18 U.S.C. § 13.
First degree murder under 18 U.S.C. § 1111 carries a
mandatory life sentence. Accordingly, Petitioner was
sentenced to life in prison on July 16, 1993. Petitioner
subsequently moved for a new trial, the Court denied
Petitioner's motion, and the Fourth Circuit affirmed.
See United States v. Hazel, 33 F.3d 53 (4th Cir.
1994) (per curiam).
filed his first motion to vacate his sentence pursuant to 28
U.S.C. § 2255 on April 18, 1997. On July 14, 1997, the
Court denied that motion. Petitioner has since filed several
successive motions under 28 U.S.C. 2255, all of which the
Court has denied. The Fourth Circuit authorized Petitioner to
file the instant Petition, his fifth, with this Court on
October 11, 2016.
primarily challenges his sentence based on the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015), which invalidated the residual clause
of the Armed Career Criminal Act, 18 U.S.C. §
924(e)(2)(B), as unconstitutionally vague. Petitioner,
however, was not sentenced under the Armed Career Criminal
Act. Rather, Petitioner seeks to apply Johnson's
holding to a separate statute, 18 U.S.C. § 3559, as well
as to the U.S. Sentencing Guidelines.
first contends that the Supreme Court's decision in
Johnson casts doubt on the constitutionality of 18
U.S.C. § 3559(c)(2)(F)(ii), which includes language
similar to the residual clause Johnson
invalidated. This similarity, however, does not call
the legitimacy of Petitioner's sentence into question.
The record reflects that Petitioner's life sentence did
not result from any provision of 18 U.S.C. § 3559.
Rather, Petitioner was convicted and sentenced under 18
U.S.C. § 1111, which carries a mandatory life sentence.
At the time of sentencing, the Court expressly noted that
this was the reason for Petitioner's life sentence.
See U.S. Exh. 2 [Dkt. 132-2]. To the extent that
Petitioner's concurrent sentence of five years under 18
U.S.C. § 13 might have been influenced by 18 U.S.C.
§ 3559, this constituted harmless error, as that
sentence was subsumed by Petitioner's mandatory life
sentence under 18 U.S.C. § 1111. See United States
v. Smith, 723 F.3d 510, 517 (4th Cir. 2013) (noting that
a petitioner under § 2255 bears the burden of showing
that the alleged error caused the petitioner prejudice).
Petitioner cites Johnson to challenge his sentence
insofar as he was designated a “career offender”
under U.S. Sentencing Guidelines § 4B1.2(1). At the time
of Petitioner's sentencing, this portion of the
Guidelines incorporated language similar to that invalidated
in Johnson. See In re Hubbard, 825 F.3d 225, 230
(4th Cir. 2016). But again, Petitioner's life sentence
did not result from any enhancement under the Guidelines, but
rather from the mandatory sentence imposed by 18 U.S.C.
§ 1111. Moreover, conviction under 18 U.S.C. § 1111
automatically results in a base offense level of 43 under the
Sentencing Guidelines, meaning that Guidelines would have
recommended life in prison whether or not Petitioner was
classified as a “career offender.” See
U.S.S.G § 2A1.1. Finally, and perhaps most importantly,
Petitioner's argument is squarely foreclosed by the
Supreme Court's recent decision in Beckles v. United
States, 137 S.Ct. 886 (2017), which held that
Johnson does not apply to the U.S. Sentencing
Guidelines. See Id. at 892 (“[T]he Guidelines
are not subject to a vagueness challenge under the Due
memoranda raise further arguments that fall outside of the
scope of his initial Petition. As an initial matter,
Petitioner may not raise these arguments without seeking
leave of the Court to amend his Petition. See United
States v. MacDonald, 641 F.3d 596, 616 (4th Cir. 2011).
Regardless, Petitioner's additional arguments are
contends first that he was “sentenced under the wrong
statute, ” and that he should have been sentenced under
18 U.S.C. § 1118 rather than 18 U.S.C. § 1111. Pet.
Rep. [Dkt. 135] at 4 n.2. The basis for this argument is
unclear. Plaintiff was tried and convicted under 18 U.S.C.
§ 1111. See See U.S. Exh. 2 [Dkt. 132-2]. It
was therefore manifestly correct and proper that Petitioner
be sentenced under that statutory provision. Relatedly,
Petitioner claims that he “received ineffective
assistance of counsel” because he should have been
sentenced under a different guidelines range and statute.
Rep. [Dkt. 135] at 6. Again, Petitioner was properly
sentenced under 18 U.S.C. § 1111, and received precisely
the sentence dictated by that statute.
has also filed two Motions to Amend his Petition [Dkt. 136,
141]. The first appears to argue that the Supreme Court's
decision in Johnson calls into question the
constitutionality of 18 U.S.C. § 1111(a) insofar as it
defines first degree murder as killing “with malice
aforethought.” Petitioner characterizes this as a
“residual clause” that Johnson
“may effect.” Mot. to Amend [Dkt. 136] at 3.
“Malice aforethought, ” however, is not a
residual clause, but rather the mens rea requirement
for first degree murder under 18 U.S.C. § 1111.
Johnson has no apparent bearing on this venerable
appears to argue further that murder under 18 U.S.C. §
1111 is not necessarily a “crime of violence”
under the Armed Career Criminal Act, 18 U.S.C. §
924(e)(2)(B), as that term was interpreted in
Johnson. This has little bearing on Petitioner's
sentence, as Petitioner was not sentenced under the Armed
Career Criminal Act.
Petitioner's second Motion to Amend Petition [Dkt. 141]
points out that, at trial, the jury was presented with two
potential motives for Petitioner's crime. Because it is
not clear what motive the jury accepted in finding Petitioner
guilty, Petitioner argues that it is unclear whether the jury
effectively determined that he acted with malice aforethought
under 18 U.S.C. § 1111(a). The Court is not persuaded.
The proffered “motives” for Petitioner's
crime, as described in Petitioner's Motion, do not appear
to be mutually exclusive, as Petitioner claims. Moreover,
both “motives” appear fully capable of supporting
a finding of malice aforethought, as both were reasons the
jury could have found for Petitioner's deliberate
decision to kill another human being. See United States
v. Medina-Garcia, 226 F. App'x 281, 286 (4th Cir.
2007). Although it might not be ...