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Smith v. United States

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

April 11, 2017

WALTER SMITH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING PETITIONER'S MOTIONS TO VACATE, SET ASIDE, OR CORRECT SENTENCE

          John Corbett O'Meara United States District Judge.

         This matter came before the court on petitioner Walter Smith's June 20 and July 1, 2016 Motions Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. The government filed a response December 9, 2016; and Petitioner filed a reply March 3, 2017.

         Petitioner Walter Smith pleaded guilty to both charges in his indictment: Hobbs Act robbery (Count I), in violation of 18 U.S.C. § 1951; and use of a firearm during and in relation to the robbery (Count II), in violation of 18 U.S.C. § 924(c). Smith filed these two motions following the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), which held that the residual clause in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. Smith therefore argues that “his 18 U.S.C. § 924(c)(1)(a)(ii) offense should be vacated and/or overturned . . . .”

         LAW AND ANALYSIS

         Pursuant to 28 U.S.C. § 2255(a),

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.

         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).

         Under 28 U.S.C. § 2255(b), evidentiary hearings are not required if "the motion and the files and records of the case conclusively show that prisoner is entitled to no relief." Because the files and records of this case conclusively show that Petitioner is not entitled to relief, an evidentiary hearing is unnecessary; and the court will rule on this matter on the briefs submitted.

         For purposes of 18 U.S.C. § 924(c), the term “crime of violence” is defined as a felony that:

(A) has as an element the use, attempted use, or threatened use of physical force against a person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3).

         Subsection (A), called the “elements clause” or the “force clause, ” looks to the elements of the offense and whether the elements involve the use of force. See, e.g., United States v. Fuertes, 805 F.3d 485, 498 (4th Cir. 2015). Subsection (B) is called the “residual clause” and looks to the risk of force posed by the offense.

         In Johnson, the Supreme Court invalidated the residual clause in the ACCA, but it left intact that statute's elements clause and enumerated-offense clauses. Johnson, 135 S.Ct. At 2563. Therefore, even if the residual clause in § 924(c) is affected by Johnson, petitioner Smith is not entitled to relief if his ...


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