United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PETITIONER'S MOTIONS TO VACATE, SET
ASIDE, OR CORRECT SENTENCE
Corbett O'Meara United States District Judge.
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.
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 . . . .”
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.
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.
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.
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
(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).
(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.
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 ...