United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING WALKER'S MOTION UNDER
28 U.S.C. § 2255 AND DECLINING TO ISSUE A CERTIFICATE OF
F. Cox, United States District Court Judge
pro se, Petitioner Charles Albert Walker filed this
habeas petition pursuant to 28 U.S.C. § 2255, asserting
that he is entitled to relief from his convictions on three
counts of aiding and abetting bank robbery, in violation of
18 U.S.C. § 2113(a), and two counts of using a firearm
in relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c). Walker argues that he is entitled to relief
because § 924(c)(3)'s residual clause is
unconstitutionally vague. Because the files and records of
the case conclusively show that Walker is not entitled to
habeas relief, an evidentiary hearing is not necessary and
the matter is ripe for the Court's decision. For the
reasons below, the Court will deny the motion and decline to
issue a certificate of appealability.
the course of a few months, Walker and his co-defendant
robbed three Detroit-area banks at gun-point, making off with
just over $190, 000. After leading police on a high-speed
chase, Walker was arrested and indicted on bank robbery and
gun charges. (ECF No. 41).
February 24, 2016, Walker pleaded guilty, pursuant to a Rule
11 plea agreement, to three counts of aiding and abetting
bank robbery, in violation of 18 U.S.C. § 2113(a), and
two counts of using a firearm in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c). (ECF No.
53). On July 8, 2016, the Court sentenced Walker to a total
term of imprisonment of 462 months. (ECF No. 68).
21, 2016, Walker filed a notice of appeal. (ECF No. 69). On
June 29, 2017, the United States Court of Appeals for the
Sixth Circuit dismissed Walker's appeal because of the
appellate waiver contained in Walker's Rule 11 plea
agreement. (ECF No. 83).
January 23, 2019, Walker filed a motion to vacate, set aside,
or correct his sentence under 28 U.S.C. § 2255. (ECF No.
96). In his motion, Walker argues that § 924(c)(3)'s
definition of “crime of violence” is
unconstitutionally vague because it contains a
“residual clause” that is identical to those
invalidated by the Supreme Court in Sessions v.
Dimaya, 138 S.Ct. 1204 (2018) and Johnson v. United
States, 135 S.Ct. 2551 (2015). In passing, Walker also
argues that he “may be entitled to some form of general
relief” under the newly enacted First Step Act. (ECF
No. 96, PageID 597).
March 25, 2019, the Government filed a response in opposition
to Walker's motion. The Government argues that motion
should be denied for two reasons. First, the Government
contends that the motion is untimely. Second, the Government
argues that the constitutionality of § 924(c)(3)'s
residual clause is irrelevant to this case because the
underlying predicate offense-bank robbery in violation of 18
U.S.C. § 2113(a)-is a crime of violence under §
924(c)(3)'s elements clause and therefore still qualifies
as a crime of violence. The Government also argues that the
First Act does not apply retroactively.
motion is brought pursuant to 28 U.S.C. § 2255, which
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.
28 U.S.C. § 2255. 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).
seeking to set aside their sentences pursuant to § 2255
have the burden of establishing their case by a preponderance
of the evidence. McQueen v. U.S., 58 Fed.Appx. 73,
76 (6th Cir. 2003). When a defendant files a § 2255
motion, he or she must set forth facts establishing
entitlement to relief. Green v. Wingo, 454 F.2d 52,
53 (6th Cir. 1972); O'Malley v. United States,
285 F.2d 733, 735 (6th Cir. 1961). “Conclusions, not
substantiated by allegations of fact with some ...