United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING § 2255 MOTION AND
DECLINING TO ISSUE
Sean F. Cox, Judge
Criminal Case Number 12-20218, Petitioner David Lamont
Holland (“Petitioner”) pleaded guilty, pursuant
to a Rule 11 Plea Agreement, to two counts of Robbery
Affecting Interstate Commerce, in violation of 18 U.S.C.
§ 1951 and two counts of Using or Carrying a Firearm
During a Federal Crime of Violence, in violation of 18 U.S.C.
§ 924(c). (Doc. # 102, Rule 11 Plea). This Court
sentenced Petitioner to a total term of 240 months. (Doc. #
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. #
418, 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 not
filed a reply to the Government's response and time to do
so has passed.
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. Moreover,
the Court declines to issue a certificate of appealability.
2, 2013, Petitioner pleaded guilty, pursuant to a Rule 11
Plea Agreement, “to Counts Nine, Ten, Eleven and Twelve
of the Third Superseding Indictment which charge two counts
each of Robbery Affecting Interstate Commerce and Using or
Carrying a Firearm During and in Relation to a Federal Crime
of Violence.” (Rule 11 Plea, at ¶ 1A). The Rule 11
Plea Agreement provided the following factual basis for
Petitioner's guilty plea:
On December 1, 2012, Jesse Gordon Dismukes, Jr. and DAVID
LAMONT HOLLAND entered the Radio Shack store located at 15005
E. 8 Mile Road, Eastpointe, Michigan unmasked and robbed
employees of cellular telephones and cash. The robbers
brandished semi-automatic pistols which they pointed at the
employees and ordered them to the back of the store where the
cellular telephones were stored . . . .
On December 7, 2012, Jesse Gordon Dismukes, Jr. and DAVID
LAMONT HOLLAND entered the T-Mobile store located at 12555
Grand River in Detroit, Michigan unmasked and robbed
employees of cellular telephones and cash. Dismukes
brandished a pistol which he pointed at the employees and
ordered them to surrender the cellular telephones, while
HOLLAND gathered merchandise . . . .
(Id. at ¶ 1C).
Court sentenced Petitioner to: (1) 40 months of imprisonment
on Counts 9 and 11, to run concurrently; (2) to 80 months of
imprisonment on Count 10, to run consecutively to the
sentence imposed on Counts 9 and 11; and (3) to 120 months of
imprisonment on Count 12, to run consecutively to the
sentence imposed on all other counts. (Doc. # 283).
Petitioner did not file a direct appeal.
16, 2016, Petitioner filed a pro se letter, which
the Court has construed as a 28 U.S.C. § 2255 motion.
(Doc. # 418). In it, Petitioner asserts that he received a
significant enhancement under provisions that have
subsequently been deemed unconstitutional by the Supreme
Court in Johnson. The Government filed a brief in
opposition to the motion on September 20, 2016. (Doc. # 405).
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 ...