United States District Court, E.D. Virginia, Newport News Division
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson United States District Judge
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
FACTUAL AND PROCEDURAL HISTORY
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.
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.
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).
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).
Crime of Violence Under 18 U.S.C. § 924(c)(1)
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).
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
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the ...