United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge.
Crawley, a federal inmate proceeding pro se, filed
this 28 U.S.C. § 2255 Motion ("§ 2255
Motion," ECF No. 143) arguing that his conviction and
sentence are invalid under Johnson v. United States,
135 S.Ct. 2551 (2015). The Government filed a Motion to
Dismiss the § 2255 Motion contending that it is barred
by the relevant statute of limitations. (ECF No. 149.) For
the reasons set out below, Crawley's Johnson
claim lacks merit and will be dismissed on that ground.
FACTUAL AND PROCEDURAL HISTORY
jury returned a four-count Superseding Indictment charging
Crawley with one count of conspiracy to interfere with
commerce by threats and violence, in violation of 18 U.S.C.
§ 1951(a) ("conspiracy to commit Hobbs Act
robbery") (Count One); one count of attempt to possess
with intent to distribute cocaine hydrochloride and cocaine
base, in violation of 21 U.S.C. § 841(a)(1) (Count Two);
one count of using, carrying, and brandishing firearms during
and in relation to a crime of violence and a drug trafficking
crime as alleged in Counts One and Two, in violation of 18
U.S.C. § 924(c) (Count Three); and, possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (Count Four). (Superseding Indictment 1-4,
ECF No. 29.) On March 7, 2008, Crawley pled guilty to Counts
One and Three of the Superseding Indictment. (Plea Agreement
¶ 1, ECF No. 45.) On June 3, 2018, the Court sentenced
Crawley to one hundred and fifty months on Count One and
eighty-four months on Count Three to run consecutively. (J.
2, ECF No. 77.)
6, 2016, Crawley filed this § 2255 Motion arguing that
his conviction under 18 U.S.C. § 924(c) in Count Three
must be vacated because of the Supreme Court's decision
in Johnson v. United States, 135 S.Ct. 2551 (2015).
Thereafter, the Government moved to dismiss, arguing that the
§ 2255 Motion is barred by the relevant statute of
limitations. It is not necessary to address the timeliness of
Crawley's § 2255 Motion because it lacks substantive
Johnson claim plainly lacks merit. It is settled
that a district court may summarily dismiss a § 2255
motion "if it plainly appears from the motion . . . and
the record of prior proceedings that the moving party is not
entitled to relief." Rules Governing Section 2255
Proceedings 4(b); see United States v. Nahodil, 36
F.3d 323, 326 (3d Cir. 1994); Raines v. United
States, 423 F.2d 526, 529 (4th Cir. 1970)
("Where the files and records conclusively show that the
prisoner is entitled to no relief, summary dismissal is
Johnson, the Supreme Court held "that imposing
an increased sentence under the residual clause of the Armed
Career Criminal Act [ ("ACCA")] violates the
Constitution's guarantee of due process," 135 S.Ct.
at 2563, because the residual clause of the ACCA, 18 U.S.C.
§ 924(e) (2) (B) (ii), defined "violent
felony" in an was unconstitutionally vague manner for
the reason that the residual clause encompassed "conduct
that presents a serious potential risk of physical injury to
another." Id. at 2557-58 (citation omitted).
Subsequently, in Welch v. United States, 136 S.Ct.
1257 (2016), the Supreme Court held that
"Johnson announced a substantive rule [of law]
that has retroactive effect in cases on collateral
review." Id. at 1268.
contends that after Johnson, the offense of
conspiracy to commit Hobbs Act robbery can no longer qualify
as a crime of violence under 18 U.S.C. § 924(c)(3), and
thus, that his conviction under Count Three must be
vacated. Crawley is incorrect.
Court notes that the Fourth Circuit's recent decision in
United States v. Simms, 914 F.3d 229 (4th Cir. 2019)
found that conspiracy to commit Hobbs Act robbery is not a
valid crime of violence under the force clause of §
924(c)(3)(A). In Simms, the defendant pled guilty to
conspiracy to commit Hobbs Act robbery and to brandishing a
firearm during and in relation to a "crime of
violence," but later challenged his brandishing
conviction on the theory that Hobbs Act conspiracy could not
be considered a "crime of violence" under 18 U.S.C.
§ 924(c)(3). Id. at 232-33. Initially, the
parties and the Fourth Circuit agreed that,
conspiracy to commit Hobbs Act robbery-does not categorically
qualify as a crime of violence under the [Force Clause], as
the United States now concedes. This is so because to convict
a defendant of this offense, the Government must prove only
that the defendant agreed with another to commit actions
that, if realized, would violate the Hobbs Act. Such an
agreement does not invariably require the actual, attempted,
or threatened use of physical force.
Id. at 233-34 (citations to the parties'
material omitted). Thereafter, the Fourth Circuit concluded
that the Residual Clause of § 924(c) is void for
vagueness. Id. at 236.
924(c) prohibits using, carrying, or possessing a deadly
weapon in connection with "any crime of violence or drug
trafficking crime." 18 U.S.C. § 924(c)(1)(A). In
this case, Crawley's § 924(c) conviction in Count
Three was predicated on both conspiracy to commit
Hobbs Act robbery, and on use, carry, and brandish
firearms during a drug trafficking crime as charged in Count
Two. The Superseding Indictment clearly indicated that the
§ 924(c) conviction charged in Count Three was
predicated on the conduct as alleged in Count One, conspiracy
to commit Hobbs Act robbery, and Count Two, the drug
trafficking charge. (Superseding Indictment 3.) In the
Statement of Facts supporting the guilty plea, the Government
provided the factual basis for the guilty plea, and the
factual basis for the § 924(c) charge clearly included
both the conspiracy to commit Hobbs Act robbery offense
charged in Count One and the drug trafficking crime charged
in Count Two. (Statement of Facts ¶¶ 1-7, 17-20.)
Crawley agreed in the plea colloquy that he understood the
charges against him. (ECF No. 41, at 2.)
even though the conspiracy to commit Hobbs Act robbery
charged in Count One is no longer a crime of violence after
Simms, Crawley's § 924(c) conviction
remains valid because it also rests on the drug trafficking
crime charged in Count Two. United Statesv.
Hare, 820 F.3d 93, 105-06 (4th Cir. 2016) (explaining
that a § 924(c) conviction predicated on both conspiracy
to commit Hobbs Act robbery and in furtherance of a drug
trafficking crime not affected by Johnson because
"[s]ection 924(c) prohibits possession of a firearm in
furtherance of a crime of violence or; a drug trafficking
crime."); see Fripp v. United States, Nos.
4:08-cr-00275-RBH, 4:16-CV-02461-RBH, 2019 WL 2368459, at
*2-3 (D.S.C. June 5, 2019) (finding petitioner not ...