United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER (RESOLVING DOCS. 42, 45,
R. ADAMS UNITED STATES DISTRICT JUDGE.
instant matter is before the Court upon Petitioner Jason
Moore's pro se Motion to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody, filed
pursuant to 28 U.S.C. § 2255. Doc. 42. Moore later filed
a pro se motion to strike his motion to vacate. Doc.
45. He subsequently obtained counsel who filed a motion for
leave to file a supplemental memorandum instanter in
support of his §2255 motion. Doc. 52. This motion for
leave to supplement is GRANTED; and therefore, Moore's
motion to strike is DENIED. After reviewing the original
motion to vacate and supplemental memorandum, along with the
record and applicable case law, Moore's motion for relief
under §2255 is DENIED.
STANDARD OF REVIEW
prevail under 28 U.S.C. § 2255, a defendant must show a
‘fundamental defect' in the proceedings which
necessarily results in a complete miscarriage of justice or
an egregious error violative of due process.” Gall
v. United States, 21 F.3d 107, 109 (6th Cir. 1994). A
federal district court may grant relief to a prisoner in
custody only if the petitioner can “demonstrate the
existence of an error of constitutional magnitude which had a
substantial and injurious effect or influence on the guilty
plea or the jury's verdict.” Griffin v. United
States, 330 F.3d 733, 736 (6th Cir. 2003).
February 7, 2004, Moore and a co-defendant entered a
convenient store in Liberty, Ohio, with guns drawn. Doc. 25
at 3-4. As set forth in the plea agreement, Moore stipulated
that he handcuffed the store's cashier in the rear of the
business and attempted to “obtain monies in the
custody, possession and presence of the employee of the One
Stop Mart by means of actual and threatened force, violence
and fear of immediate injury to the employee.” Doc. 25
at 4. At the time of the attempted robbery, Moore was a
convicted felon and was in possession of a Browning, .25
caliber semi-automatic pistol loaded with 12 rounds of
ammunition. Doc. 25 at 4.
was subsequently arrested and pled guilty to one count each
of attempting to interfere with commerce by threats or
violence, using and carrying a firearm during and in relation
to a crime of violence, and being a felon in possession. Doc.
25 at 2. On November 17, 2004, he was sentenced to 77 months,
to run concurrent, for attempting to interfere with commerce
by threats or violence and being a felon in possession. Doc.
38. He was also sentenced to 84 months for using and carrying
a firearm during a crime of violence, which is also referred
to as a “Hobbs Act Robbery.” Doc. 38. The
sentence of 84 months was ordered to run consecutive to the
77-month sentence for the remaining two counts. Doc. 38.
years later, on May 4, 2015, Moore filed a pro se
motion to vacate his sentence under 28 U.S.C. §2255.
Doc. 42. He then, for the first time, filed a notice of
appeal with the U.S. Court of Appeals for the Sixth Circuit,
which was dismissed as untimely. Docs. 46 and 48. Moore filed
a pro se motion to strike his §2255 motion to
vacate, stating that he intended to re-file it using a
different form. Doc. 45. He later obtained counsel, and his
attorney filed a motion for leave to file a supplemental
memorandum instanter in support of his §2255
motion. Doc. 52.
LAW AND ARGUMENT
grounds for relief set forth in Moore's pro se
§2255 motion are denied as untimely, since they were
asserted 11 years after sentencing. However, Moore raises
certain legal arguments in his supplemental memorandum that
are timely for review. Specifically, Moore argues that the
Court must vacate his conviction for the Hobbs Act Robbery,
because it does not meet the requirements of 18 U.S.C.
§924(c)(3). Section 924(c) imposes mandatory minimum
sentences for anyone who uses or carries a firearm during or
in relation to a “crime of violence.” The statute
defines crime of violence as:
[A]n offense that is a felony and-
(A) has an element the use, attempted use, or threatened use
of physical force against the person or property of another,
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the ...