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Gale v. United States

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

September 16, 2019

BRIAN GALE, Petitioner,


          Raymond A. Jackson United States District Judge

         Before the Court is Brian Gale's ("Petitioner") pro se Motion to Vacate, Set Aside, or Correct a Sentence pursuant to Title 28, United States Code, Section 2255, and the Government's Response to Petitioner's Motion ("§ 2255 Motion"). For reasons set forth below, Petitioner's Motion is DENIED.


         On May 10, 2017, Petitioner was indicted for an incident which occurred on July 3, 2016. ECF No. 1. The two-count indictment alleged that on July 3, 2016, Petitioner robbed Ricco's Pizza using a firearm, which was used, brandished and discharged during the robbery. Id. Petitioner was charged with interference with commerce by robbery in violation of 18 U.S.C. § 1951 ("Hobbs Act robbery"), as well as brandishing a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). Id. On July 21, 2017, Petitioner pled guilty with a written Plea Agreement and Statement of Facts. ECF Nos. 26 and 27. On November 27, 2017, this Court accepted Petitioner's guilty plea and sentenced him to 78 months imprisonment on the Hobbs Act robbery count and 120 months imprisonment for discharging a firearm, to be served consecutively with his Hobbs Act robbery sentence. ECF No. 37.

         On December 12, 2018, Petitioner's trial counsel filed a defective § 2255 Motion. ECF No. 42. This motion was denied on January 14, 2019 and Petitioner was given 60 days to file a proper § 2255 Motion. ECF No. 48. Petitioner appealed this order to the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit"), which was denied on August 8, 2019. ECF No. 62. Petitioner filed the present § 2255 Motion on February 4, 2019. ECF No. 50. The present motion was stayed on March 14, 2019 pending the Supreme Court's decision in United States v. Davis. ECF No. 57. The stay was lifted on July 29, 2019 and the Government was given until August 12, 2019 to file its response to the instant § 2255 Motion. ECF No. 59. The Government filed its response on August 1, 2019. ECF No. 60. On August 26, 2019, this Court granted Petitioner's motion for an extension of time to file a reply to the Government's response. ECF No. 64. On September 4, 2019, Petitioner filed his reply to the Government's response. ECF No. 65.


         A. Section 2255

          Section 2255 allows a federal prisoner "claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... [to] move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255. In a § 2255 motion, the petitioner bears the burden of proving his or her claim by a preponderance of the evidence. See Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). Additionally, pro se filers are entitled to more liberal construction of their pleadings. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         When deciding a § 2255 motion, the Court must promptly grant a hearing "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). Motions under § 2255 generally "will not be allowed to do service for an appeal." Sunal v. Large, 332 U.S. 174, 178-79 (1947). For this reason, issues already fully litigated on direct appeal may not be raised again under the guise of a collateral attack. United States v. Dyess, 730 F.3d 354, 360 (4th Cir. 2013). Issues that should have been raised on direct appeal are deemed waived, procedurally defaulted, and cannot be raised on a 2255 Motion. United States v. Mikalajunas, 186 F.3d 490, 492 (4th Cir. 1999). However, an individual may raise a procedurally defaulted claim if he or she can show (1) "cause and actual prejudice resulting from the errors of which he complains" or (2) that "a miscarriage of justice would result from the refusal of the court to entertain the collateral attack[meaning] the movant must show actual innocence by clear and convincing evidence." Id. at 492-93. To demonstrate cause and prejudice, a petitioner must show the errors "worked to [his or her] actual and substantial disadvantage, infecting [his or her] entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170(1982).

         B. Crime of Violence Under 18 U.S.C. § 924(c)(1)

         Section 924(c)(1)(A) provides that a person who uses or carries a firearm "during and in relation to any crime of violence" or who "possesses a firearm" "in furtherance of any such crime" may be convicted of both the underlying crime (here, Hobbs Act robbery) and the additional, distinct crime of utilizing a firearm in connection with a "crime of violence." Utilizing a firearm in connection with a crime of violence is punishable by at least five consecutive years of imprisonment, with seven years of imprisonment for brandishing the firearm and ten years of imprisonment if the firearm is discharged. 18 U.S.C. § 924(c)(1)(A).

         Section 924(c)(3) defines "crime of violence" as "an offense that is a felony" and

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, 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 ...

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