United States District Court, E.D. Virginia, Richmond Division
E. Payne, Senior United States District Judge
Ryan Alleyne, a federal inmate proceeding with counsel, filed
this 28 U.S.C. § 2255 Motion (“§ 2255
Motion," ECF No. 116) 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. 120.) For
the reasons set out below, Alleyne's Johnson
claim lacks merit and will be dismissed on that ground.
FACTUAL AND PROCEDURAL HISTORY
jury returned a two-count Indictment charging Alleyne with
interference with commerce by threats and violence and aiding
and abetting that offense, in violation of 18 U.S.C.
§§ 1951(a) and 2 ("Hobbs Act robbery")
(Count One) and use, carry, and possession of a firearm
during and in relation to the crime of violence as alleged in
Count One, and aiding and abetting that offense, in violation
of 18 U.S.C. §§ 924(c)(1)(A) and 2 (Count Two).
(Indictment 1-2, ECF No. 8.) A jury convicted Alleyne of both
counts. (ECF No. 67, at 1.) On February 2, 2011, the Court
sentenced Alleyne to forty-six months of incarceration on
Count One and eighty-four months of incarceration on Count
Two to be served consecutively to Count One. (J. 2, ECF No.
20, 2016, Alleyne filed this § 2255 Motion arguing that
his conviction under 18 U.S.C. § 924(c) in Count Two
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
Alleyne'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 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 Hobbs
Act robbery and aiding and abetting that offense can no
longer qualify as a crime of violence under 18 U.S.C. §
924(c)(3), and thus, that his conviction under Count Two must
18 U.S.C. section 924(c)(1)(A) provides for consecutive
periods of imprisonment when a defendant uses or carries a
firearm in furtherance of a crime of violence. The baseline
additional period of imprisonment is five years. 18 U.S.C.
§ 924(c) (1) (A) (i) . If the defendant brandishes the
firearm, the additional period of imprisonment increases to
at least seven years. Id. § 924(c) (1) (A) (ii)
. And, if the defendant discharges the firearm, the
additional period of imprisonment increases to at least ten
years. Id. § 924 (c) (1) (A) (iii).
recently, the United States could demonstrate that an
underlying offense constituted a crime of violence if it
established that the offense was a felony and satisfied one
of two requirements. Namely, the statute defined a crime of
violence as any felony:
(A) [that] has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another [(the "Force Clause")], or
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense [(the
Id. § 924(c)(3). The Supreme Court recently
invalidated the Residual Clause, or § 924(c)(3)(B), in
United States v. Davis, 139 S.Ct. 2319, 2339 (2019).
However, Hobbs Act robbery remains a qualifying crime of
violence under the Force Clause. United Statesv. Mathis, ___ F.3d ___, Nos. 16-4633, 16-4635,
16-4637, 16-4641, 16-4837, 16-4838, 2019 WL 3437626, at *16
(4th Cir. July 31, 2019) (citations omitted) (holding that
"Hobbs Act robbery constitutes a crime of ...