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United States v. D-13 Nicolas Hood

United States District Court, E.D. Michigan, Southern Division

March 29, 2017

United States of America, Plaintiff/Respondent,
v.
D-13 Nicolas Hood, Defendant/Petitioner.

          OPINION & ORDER DENYING § 2255 MOTION (DOC. # 419), DENYING MOTION FOR ABEYANCE (Doc. # 415) AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

          Hon. Sean F. Cox, Judge

         In Criminal Case Number 12-20218, Petitioner Nicolas Hood (“Petitioner”) pleaded guilty, pursuant to a Rule 11 Plea Agreement, to one count of Robbery Affecting Interstate Commerce, in violation of 18 U.S.C. § 1951 and one count of Using or Carrying a Firearm During a Federal Crime of Violence, in violation of 18 U.S.C. § 924(c). This Court sentenced Petitioner to a total term of 108 months of imprisonment.

         The matter is now before the Court on Petitioner's pro se letter, construed by the Court as a Motion to Vacate Sentence brought pursuant to 28 U.S.C. § 2255. (Doc. # 419, Pet. Br.). Petitioner's request for relief is based upon the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2251 (2015), which held that the residual clause of the Armed Career Criminal Act (“ACCA”) was unconstitutionally vague. The Government has filed a response opposing Petitioner's motion. (Doc. # 405, Gov't Resp.). Petitioner has replied to the Government's response. (Doc. # 415).

         Because the files and records of the case conclusively establish that Petitioner is not entitled to relief as to any of the claims set forth in this § 2255 motion, an evidentiary hearing is not necessary. The motion is therefore ready for a decision by this Court. For the reasons set forth below, Petitioner's motion to vacate will be DENIED. To the extent that Petitioner intended Docket Entry No. 415 to serve as a motion to hold this cause of action in abeyance, it is DENIED AS MOOT. Moreover, the Court declines to issue a certificate of appealability.

         BACKGROUND

         On March 20, 2014, Petitioner was charged in a Fifth Superseding Indictment with committing a cellular telephone store robbery affecting interstate commerce and with using or carrying a firearm during a federal crime of violence, in violation of 18 U.S.C. §§ 1951 and 924(c) respectively. (Doc. # 290, Fifth Superseding Indictment). On May 14, 2014, Petitioner pleaded guilty to the charges pursuant to a Rule 11 Plea Agreement. (Doc. 306, Rule 11 Plea Agreement). The Agreement provided for a sentencing guideline range of 111-117 months, with a cap of 117 months. (Id. at ¶¶ 2B and 3A).

         On October 27, 2014, this Court sentenced Petitioner to 24 months on Count 1 and to 84 months on Count 2, to run consecutively to the sentenced imposed on Count 1. (Doc. # 368). Petitioner did not file a direct appeal.

         On June 23, 2016 and June 27, 2016, Petitioner filed two letters asking the Court to examine his case in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2251 (2015). (Doc. # 392, 393). On June 29, 2016, Petitioner filed a third letter, which he stated “serve[d] as [Petitioner's] Motion for sentencing relief based on the recent Supreme Court holdings in Johnson v. United States ... and in Welch v. United States...” (Doc. # 419, Pet. Br.) (underlined text in original). This Court construes Petitioner's June 29, 2016 letter as a 28 U.S.C. § 2255 Motion to Vacate Sentence.

         The Government filed a brief in opposition to the motion on September 23, 2016. (Doc. # 406, Gov't Resp.). On October 11, 2016, Petitioner filed “Objections” to the Government's response and also asked that the Court place this cause of action in abeyance “until the United States Supreme Court decides Beckles v. United States ... in which case the Supreme Court rule in favor of Beckles, the [Government] would lack subject-matter jurisdiction over [Petitioner's] 18 U.S.C. § 924(c), and 18 U.S.C. § 1[9]51 Hobbs Act Robbery...” (Doc. # 415, Pet. Reply) (emphasis in original). The Court construes the objections as Petitioner's reply to the Government's response and as a motion to place this cause of action in abeyance.[1]

         STANDARD

         Petitioner's motion is brought pursuant to 28 U.S.C. § 2255, which provides:

A prisoner in custody under a sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence imposed was in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside, or correct the sentence.

28 U.S.C. § 2255(a). To prevail on a § 2255 motion, “a petitioner must demonstrate the existence of an error of constitutional magnitude which has a substantial and injurious effect or influence on the guilty plea or the jury's verdict.” Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005). A movant can prevail on a § 2255 motion alleging non-constitutional error only by establishing a “fundamental defect which inherently results in a complete miscarriage of justice, or an error so egregious that it amounts to a violation of due process.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999).

         The Court must hold an evidentiary hearing on a § 2255 motion “[u]nless 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); Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996) (“evidentiary hearings are not required when . . . the record conclusively shows that the petitioner is entitled to no relief.”). Because the files and records of the case conclusively show that Petitioner is not entitled to ...


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