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United States v. Holmes

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

September 19, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
DEONTAE HOLMES, Defendant/Petitioner.

          OPINION AND ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE [102]

          Nancy G. Edmunds, United States District Judge

         Before the Court is Petitioner Deontae Holmes' motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. (Dkt. no. 102, "Petitioner's Motion.") The Court has jurisdiction over this motion pursuant to 28 U.S.C. § 2255, based on Petitioner's negotiated Rule 11 plea agreement in this Court on June 22, 2015. (Dkt. no. 36.) This Court is familiar with the previous proceedings, has reviewed the pleadings and supporting documentation, and Petitioner has suggested no evidence to support his motion. The motion, files and records of the case conclusively show that the Petitioner is entitled to no relief and the Court finds that an evidentiary hearing on this matter is not necessary. See 28 § U.S.C. 2255(b). The Court has reviewed these pleadings and denies Petitioner's motion with prejudice.

         I. Background Facts and Procedural History

         Petitioner states in his reply that he "is in agreement with the governments (sic) rendition of events from the December month." (Pet'r's Answer and Return 1, dkt. 113.) The Government sets forth the following facts:

Between December 20, 2014 and December 29, 2014 Deontae Holmes, together with Lemarc Peacock and Jeremy Lockett committed a series of armed robberies of Family Dollar and Dollar General stores in the city of Detroit. In all four of the robberies, Holmes, accompanied by one of his co-defendants, entered the store intending to commit an armed robbery. In each of the incidents, the defendants were armed with a handgun. The defendants entered each store, threatened the store employees with the gun and demanded money.

(United States' Resp. 2, dkt. 111.)

         A grand jury indicted Petitioner on eight counts: Hobbs Act robbery (counts one, three, five and seven) in violation of 18 U.S.C. § 1951, and use of a firearm during and in relation to the robbery (counts two, four, six and eight) in violation of 18 U.S.C. § 924(c). (Superceding Indictment, dkt. 23.)

         On June 22, 2015, Petitioner pleaded guilty to six of the eight indicted counts, pursuant to a Rule 11 plea agreement. (Plea Agreement, dkt. no. 36; Plea Hearing Tr. 6, dkt. 67.) On January 21, 2016, the Court sentenced Petitioner to a total of 174 months: six-month concurrent sentences on counts one, three, five and seven, and 84-month consecutive sentences on counts six and eight. (Judgment, dkt. 100; Sentencing Hearing Tr. 12-13, dkt. 123.) On June 21, 2016, Petitioner filed his motion to vacate sentence under 28 U.S.C. § 2255. (Pet'r's Mot., dkt. 102.)

         II. Standard

         28 U.S.C. § 2255 allows a prisoner in custody under sentence of a federal court to "move the court which imposed the sentence to vacate, set aside or correct the sentence" when "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a).

         III. Analysis

         A. Johnson Does Not Apply

         Petitioner moves to vacate his sentence in light of Johnson v. United States, 135 S.Ct. 2551 (2015). Johnson held that the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e)(2)(B)(ii), was unconstitutionally vague. Id. at 2557. Petitioner was sentenced pursuant to section 924(c) and argues that “the residual clause of 924(c) is also unconstitutionally vague” pursuant to Johnson's reasoning. (Pet'r's Mot. to Vacate 17 of 21, dkt. 102.)

For purposes of 18 U.S.C. § 924(c), a “crime of violence” is defined as [A]n offense that is a felony and--
(A) has as an element the use, attempted use, or threatened use of physical force against the 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). Subpart A “is commonly referred to as the ‘force' clause, ” and subpart B “is commonly referred to as the ‘residual' clause.” United States v. Moore, No. ...


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