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Norfleet v. United States

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

April 9, 2018

PAUL NORFLEET, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          MARK S. DAVIS UNITED STATES DISTRICT JUDGE.

         This 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.[1]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).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In May 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.

         On May 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.

         In May 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).

         While 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.

         II. STANDARD OF REVIEW

         A § 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).

         The 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 (1984).

         Congress 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 added).

         III. DISCUSSION

         A. Johnson Claim

         Petitioner's § 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. ยง ...


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