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United States v. Hicks

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

June 29, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CARLOS UNDRY HICKS, Defendant.

          ORDER DENYING DEFENDANT'S HABEAS CORPUS PETITION

          VICTORIA A. ROBERTS, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Petitioner Carlos Undry Hicks pled guilty to murdering a witness to prevent testimony. The judge sentenced him to 420 months in prison on January 28, 1999. On appeal, the Sixth Circuit affirmed his conviction. The United States Supreme Court denied his petition for writ of certiorari.

         On July 15, 2016, Hicks filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, asking the Court to vacate his conviction. The essence of Hicks's claim is that the act underlying his conviction - shooting and killing a witness - no longer qualifies as a crime of violence.

         II. STANDARD OF REVIEW

         28 U.S.C. § 2255(a) provides that a prisoner in custody may move to vacate, set aside, or correct a sentence imposed by a federal court on grounds “that 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[.]” Under 28 U.S.C. § 2255(f), “[a] 1-year period of limitation shall apply to any motion under this section, ” which runs from “the date on which the judgment of conviction becomes final.”

         Should the initial 1-year period of limitation expire, a Petitioner may bring a motion under 28 U.S.C. § 2255(f)(3), which provides that a 1-year limitation runs from “the date on which the right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review.”

         The initial 1-year period of limitation has expired. Hicks now brings this motion under 28 U.S.C. § 2255(f)(3).

         III. BACKGROUND

         Hicks pled guilty to one count of murder during a federal crime of violence in violation of 18 U.S.C. § 924(j). He used a firearm in the commission of a crime of violence in violation of 18 U.S.C. § 924(c)(1); that crime of violence was shooting and killing a witness with intent to prevent testimony at trial, in violation of 18 U.S.C. § 1512(a). For an act to qualify as a “crime of violence” for the purposes of § 924(c)(1), it must meet the criteria set forth in § 924(c)(3), which states that a “crime of violence” is “an offense that is a felony and -

(A) has as an element the use, attempted use, or threated 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.”

         Petitioner asks the Court to find that the end of this provision - “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” - is unconstitutionally vague under the due process clause of the Fifth Amendment. Petitioner reasons that because he was convicted under § 924(c), and a portion of that statute is unconstitutional, his conviction should be vacated.

         IV. ...


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