United States District Court, E.D. Virginia, Newport News Division
OPINION AND ORDER
S. DAVIS UNITED STATES DISTRICT JUDGE.
matter is before the Court on Paul Norfleet's
("Petitioner") Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255. ECF No.
208. Petitioner's § 2255 motion advances two claims,
the first challenging Petitioner's conviction under 18
U.S.C. § 924(c) based on the Supreme Court's ruling
in Johnson v. United States, 135 S.Ct. 2551 (2015),
and the second alleging ineffective assistance of trial
counsel.In response to such filing, the Government
filed a motion to dismiss Petitioner's § 2255 motion
as untimely. For the reasons set forth below, the
Government's motion to dismiss is
GRANTED as to all § 2255 claims, and
Petitioner's Johnson claim is alternatively
DENIED on the merits in light of the Fourth
Circuit's intervening decision in United States v.
Evans, 848 F.3d 242 (4th Cir.), cert, denied,
137 S.Ct. 2253 (2017).
FACTUAL AND PROCEDURAL BACKGROUND
of 2008, Petitioner and two co-conspirators committed an
armed carjacking. ECF No. 204. After the victim of the
carjacking escaped and alerted police, Petitioner and one of
his co-conspirators were apprehended. Id. In
November of 2008, a federal grand jury returned a multi-count
indictment charging Petitioner with three felony counts,
including carjacking, in violation of 18 U.S.C. § 2119,
and using and brandishing a firearm during and in relation to
a crime of violence (carjacking), in violation of 18 U.S.C.
§ 924(c)(1). ECF No. 20. Petitioner pled not guilty to
the charges and proceeded to a jury trial.
28, 2009, at the conclusion of a multi-day jury trial, the
jury returned a verdict finding Petitioner guilty of all
three felony counts, further finding that the firearm in
question was "brandished." ECF No. 143. On August
21, 2009, Petitioner was sentenced to a total term of 205
months imprisonment, consisting of 151 months on the
carjacking count, and 84 months consecutive on the firearm
brandishing count. ECF No. 166. Petitioner timely appealed
his conviction and sentence, and the United States Court of
Appeals for the Fourth Circuit affirmed. United States v.
Norfleet, 401 Fed.Appx. 833, 835 (4th Cir. 2010) .
Petitioner did not file a petition for writ of certiorari,
nor did he file a § 2255 motion in the wake of the
Fourth Circuit's ruling.
of 2016, Petitioner submitted a letter-motion to this Court
seeking to litigate a claim pursuant to the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015) . ECF No. 199. After subsequent filings
in this Court, and in the Fourth Circuit, Petitioner filed
the § 2255 motion now pending before this Court. ECF No.
206. Such motion seeks relief on the following two grounds:
(1) Petitioner's carjacking offense does not qualify as a
"crime of violence" in light of the Supreme
Court's ruling in Johnson; and (2) trial counsel
rendered ineffective assistance during 2008/2009, as
evidenced by trial counsel's purported disbarment. ECF
Nos. 206, 208. In response, the Government moved to dismiss
Petitioner's § 2255 motion, arguing that such motion
is untimely because the holding in Johnson is
limited to the constitutionality of the Armed Career Criminal
Act (MACCA"), a statute that does not apply
to Petitioner's case. ECF No. 209. Petitioner filed a
reply brief in opposition to dismissal, highlighting several
potentially dispositive cases pending before the Fourth
Circuit, and the United States Supreme Court. See
ECF No. 213, at 1 (citing cases, including Dimaya v.
Lynch, No. 15-1498, a still undecided case that was
reargued before the Supreme Court earlier this term as
Sessions v. Dimaya).
this Court did not enter an order staying this case, in light
of the pending cases highlighted in Petitioner's
reply/opposition to dismissal, the Court informally held this
matter in abeyance. Although Dimaya remains
outstanding as of the date of this Opinion and Order,
intervening Fourth Circuit case law demonstrates that
Petitioner's Johnson claim lacks merit
irrespective of the outcome of Dimaya. Accordingly,
Petitioner's § 2255 motion is ripe for review.
STANDARD OF REVIEW
§ 2255 motion is, in essence, a statutory federal habeas
corpus action that collaterally attacks a sentence or
conviction through the filing of a new proceeding, as
contrasted with a direct appeal. United States v.
Hadden, 475 F.3d 652, 663 (4th Cir. 2007) . To obtain
§ 2255 relief, a petitioner bears the burden of proving
that his sentence or conviction was *imposed in violation of
the Constitution or laws of the United States, " that
the district court "was without jurisdiction to impose
such sentence, " that the sentence exceeds "the
maximum authorized by law, " or that the sentence or
conviction is "otherwise subject to collateral
attack." 28 U.S.C. § 2255(a). A petitioner must
prove the asserted grounds by a preponderance of the
evidence. Miller v. United States, 261 F.2d 546, 547
(4th Cir. 1958).
existence of the right to pursue a collateral attack does not
displace a direct appeal as the "usual and customary
method of correcting trial errors." United States v.
Allgood, 48 F.Supp.2d 554, 558 (E.D. Va. 1999) . To the
contrary, with limited exceptions, a petitioner advancing new
claims asserted for the first time in a § 2255 motion
"must clear a significantly higher hurdle than would
exist on direct appeal." United States v.
Frady, 456 U.S. 152, 166 (1982). A § 2255
petitioner need not, however, overcome such "higher
hurdle" to advance a freestanding claim of ineffective
assistance of counsel, which is properly asserted for the
first time in a § 2255 motion. United States v.
King, 119 F.3d 290, 295 (4th Cir. 1997). To obtain
relief based on an allegation of ineffective assistance, a
petitioner must establish both: (1) that counsel's
performance was so deficient that it fell below an objective
standard of reasonableness; and (2) that counsel's
inadequate performance caused the petitioner prejudice.
Strickland v. Washington, 466 U.S. 668, 687-88
and the President have established a one-year limitations
period within which a petitioner must file a § 2255
motion. 28 U.S.C. § 2255(f). The one-year limitations
period begins running on the latest of four dates: (1) the
"date on which the judgment of conviction becomes
final"; (2) the date on which certain government-created
impediments to filing are removed; (3) the date on which a
new right has been recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(4) the date on which facts supporting the claim could be
discovered through due diligence. Id. (emphasis
§ 2255 motion, filed pro se and construed
liberally, asserts that this Court was without authority to
convict or sentence Petitioner on the § 924 (c) firearm
brandishing charge. Specifically, Petitioner contends that,
in light of the Supreme Court's Johnson
decision, Petitioner's carjacking conviction does not
qualify as a "crime of violence" as defined in
§ 924(c)(3). In Johnson, the Supreme Court
invalidated the "residual clause" contained in the
ACCA based on the Court's finding that such statutory
clause was constitutionally overbroad in defining crimes that
qualify as a "violent felony" for ACCA sentencing
purposes. Johnson, 135 S.Ct. at 2556 (quoting 18
U.S.C. § ...