United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITIONER'S MOTION TO
VACATE, SET ASIDE OR CORRECT SENTENCE 
G. Edmunds, United States District Judge
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.
Background Facts and Procedural History
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.)
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.)
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.)
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).
Johnson Does Not Apply
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
(A) has as an element the use, attempted use, or threatened
use of physical force against the 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). 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. ...