United States District Court, E.D. Virginia, Richmond Division
E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE.
Byrd, a federal inmate proceeding with counsel, filed this 28
U.S.C. § 2255 Motion ("§ 2255 Motion,"
ECF No. 57) 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. 62.) For the
reasons set out below, Byrd's Johnson claim lacks merit
and will be dismissed on that ground.
FACTUAL AND PROCEDURAL HISTORY
jury returned a four-count Indictment charging Byrd with
interference with commerce by threats and violence, in
violation of 18 U.S.C. §§ 1951(a} ("Hobbs Act
robbery"} (Count One); use, carry, display, brandish,
and possess a firearm during and in relation to the crime of
violence as alleged in Count One, in violation of 18 U.S.C.
§§ 924(c)(Count Two); attempted Hobbs Act robbery
(Count Three); and, use, carry, display, brandish, and
possess a firearm during and in relation to the crime of
violence as alleged in Count Three. (Indictment 1-4, ECF No.
10.) On November 29, 2012, Byrd pled guilty to Counts One and
Two of the Indictment. (Plea Agreement ¶ 1, ECF No. 24.)
On February 22, 2013, the Court sentenced Byrd to one hundred
and eighty 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. 46.)
17, 2016, Byrd 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
Byrd'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
contends that after Johnson, the offense of 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
Two must be vacated. Byrd is incorrect.
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).
time of Byrd's conviction, 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 States v.
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 ...