United States District Court, E.D. Virginia, Richmond Division
E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE
Coureton, a federal inmate proceeding with counsel, filed
this 28 U.S.C. § 2255 Motion ("§ 2255 Motion,
" ECF No. 32) arguing that his firearm conviction is
invalid under Johnson v. United States, 135 S.Ct.
2551 (2015). The Government initially filed a Motion to
Dismiss the § 2255 Motion contending that it is barred
by the relevant statute of limitations. (ECF No. 35.)
Thereafter, the Court ordered further briefing. In its most
recent Supplemental Memorandum, the Government now argues
that Coureton's claim lacks merit. (ECF No. 43, at 2-5.)
For the reasons set out below, the § 2255 Motion will be
September 16, 2008, Coureton was charged in a two-count
Indictment. (ECF No. 9.) Count One charged Coureton with
interference with commerce by threats and violence and aiding
and abetting, in violation of 18 U.S.C. § 1951(a) and
(2) ("Hobbs Act robbery"). (Id. at 1-2.)
Count Two charged Coureton with using, carrying, and
brandishing a firearm and aiding and abetting that offense,
during and in relation to a crime of violence, to wit, the
Hobbs Act robbery charged in Count One, in violation of 18
U.S.C. § 924(c) (1) (A) (ii) and 2. (Id at 2.)
November 3, 2008, pursuant to a Plea Agreement, Coureton pled
guilty to both Counts One and Two. (ECF No. 13, at 1.)
However, the Plea Agreement erroneously indicated that Count
One was conspiracy to commit Hobbs Act robbery.
(Id.) The language of the Plea Agreement stated as
The defendant agrees to plead guilty to Counts One and Two of
the criminal indictment. Count One charges the defendant with
Conspiracy to Interfere with Commerce by Threats and
Violence, and Aiding and Abetting that crime .... Count Two
charges the defendant with Use, Carry and Brandishing
Firearms and Aiding and Abetting in that crime During and in
Relation to a Crime of Violence.
(ECF No. 13, at 1 (emphasis added).) Notably, the Indictment
did not charge Coureton with conspiracy to commit Hobbs Act
robbery. Rather, it charged Coureton solely with substantive
Hobbs Act robbery and aiding and abetting that offense. (ECF
No. 9, at 1.) The Statement of Facts in support of the Plea
Agreement reflected that: "On or about June 21, 2008,
CODY D. COURETON did interfere with commerce by threats and
violence, and did aid and abet the crime, and he did use,
carry, and brandish, and aided and abetted others in using,
carrying and brandishing firearms during and in relation to a
crime of violence." (ECF No. 14, at 1.) The Statement of
Facts also indicated that "CODY D. COURETON, along with
others, did commit the acts set forth in Counts One and Two
of the pending criminal indictment." (Id. at
the Rule 11 plea hearing, the following colloquy exchanges
THE COURT: Have you received a copy of the indictment this is
the formal charge, read it to yourself, and discussed it with
Ms. Vidal, your attorney?
MR. COURETON: Yes, sir.
THE COURT: Do you understand that in Count 1 you are charged
with knowingly conspiring, that is, knowingly
agreeing with others to interfere with interstate
commerce by threats and violence, and aiding and abetting
others in that crime, that is, robbery of a facility that was
involved in interstate commerce; you understand that's
MR. COURETON: Yes, sir.
(ECF No. 46, at 7-8 (emphasis added).)
The COURT: Now, in Count 2, you understand that charges you
with the use, carrying and brandishing of a firearm during
the commission of those acts, and aiding and abetting, the
offense as charged in Count 1, all constituting a crime of
violence; you understand that is the charge"
Mr. COURETON: Yes, sir.
(Id. at 9-10.) On February 9, 2009, the Court
sentenced Coureton to 180 months on Count One and 84 months
on Count Three, to be served consecutively. (ECF No. 22, at
2.) The Judgment reflects that Coureton was convicted of
"Conspiracy to Interfere With Commerce By
Threats and ...