United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING § 2255 MOTION (DOC. #
419), DENYING MOTION FOR ABEYANCE (Doc. # 415) AND DECLINING
TO ISSUE A CERTIFICATE OF APPEALABILITY
Sean F. Cox, Judge
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
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).
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.
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).
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.
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.
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. § 151 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.
motion is brought pursuant to 28 U.S.C. § 2255, which
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).
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