United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
C. NUGEMT, United States District Judge
matter comes before the Court upon Petitioner, Nathaniel
Antoine Wright Jr.'s Motion to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody, pursuant to
28 U.S.C. §2255 (ECF # 55). Petitioner seeks to vacate
his sentence on one count of brandishing a firearm during and
in relation to a crime of violence in violation of 18 U.S.C.
AND PROCEDURAL HISTORY
January 15, 2014, Petitioner was charged in two counts of a
three count indictment. Count One charged Petitioner with
aiding and abetting armed bank robbery in violation of 18
U.S.C. §§ 2 and 2113 (a) and (d), and Count Two
charged Petitioner with brandishing a firearm during and in
relation to a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii). On August 6, 2014, Petitioner
pleaded guilty to the indictment against him as charged.
November 10, 2014, this Court sentenced Petitioner to 36
months on Count One and 84 months on Count Two, to run
consecutive. Petitioner did not file a direct appeal.
Instead, on June 20, 2016, Petitioner filed the instant
Motion to Vacate under 28 U.S.C. § 2255. (ECF # 55).
Petitioner now asks this Court to vacate its sentence based
on the Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015) (finding the residual
clause definition of "violent felony" in the Armed
Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii)
(hereinafter "ACCA") to be unconstitutionally
vague.). On August 17, 2016, the Government filed a Response
in Opposition to Petitioner's Motion for Relief under 28
U.S.C. § 2255. (ECF # 61).
Motion to Vacate under 28 U.S.C. § 2255.
petitioner that moves to vacate, set aside or correct a
sentence pursuant to 28 U.S.C. § 2255 must demonstrate
that: (1) the sentence was imposed in violation of the
Constitution or laws of the United States; (2) the court was
without jurisdiction to impose the sentence; (3) the sentence
was in excess of the maximum authorized by law; or (4) it is
otherwise subject to collateral attack. See 28
U.S.C. § 2255. As such, a court may grant relief under
§ 2255 only if a petitioner has demonstrated "a
fundamental defect which inherently results in a complete
miscarriage of justice." Id. (internal
quotation and citation omitted). If a § 2255 motion, as
well as the record, conclusively show that the petitioner is
not entitled to relief, then the court need not grant an
evidentiary hearing on the motion. See 28 U.S.C.
§ 2255; see also Valentine v. United States,
488 F.3d 325, 333 (6th Cir. 2007) (stating that no
evidentiary hearing is required where there "record
conclusively shows that the petitioner is entitled to no
relied") (quoting Arredonda v. United States,
178 F.3d 778, 782 (6th Cir. 1999)); Blanton v. United
States, 94 F.3d 227, 235 (6th Cir. 1996). Petitioner in
this case alleges that his sentence must be vacated because
his crime can only be considered a crime of violence under
§ 924 (c)(3)(B). He alleges that § 924 (c)(3)(B) is
unconstitutionally vague in violation of the Fifth Amendment
to the United States Constitution and thus, his conviction
must be vacated.
Petitioner's Conviction is a Violent Felony under §
petitioner was convicted of aiding and abetting armed bank
robbery under 18 U.S.C. 2 and 2113 (a) and (d). Specifically,
the portion under Section 2113 (a) that the petitioner was
charged with was the "force, violence, and
intimidation" portion. (R. 7: Indictment, PagelD 36-37).
The Sixth Circuit has determined that "force, violence,
and intimidation" each involve "the use, attempted
use, or threatened use of physical force." United
States v. McBride, 2016 FED App. 0136P (6th Cir. 2016).
This definition is the same definition of "violent
felony" under 924 (c)(3)(A). Thus, the petitioner's
conviction is considered a violent felony under § 924
(c)(3)(A) and his sentence is proper under § 924
§ 924 (c)(3)(B) is a narrower residual clause than the
residual clause invalidated in Johnson and thus,
Johnson does not apply.
petitioner next argues that his conviction and sentence
should be vacated because § 924(c)(3)(B) is void for
vagueness pursuant to Johnson v. United States, 135
S.Ct. 2551 (2015). Assuming § 924(c)(3)(A) did not
support the petitioner's conviction and sentence, his
argument still fails because the Sixth Circuit rejected
petitioner's exact argument in United States v.
Taylor,814 F.3d 340 (6th Cir. 2016) (distinguishing
§ 924(c)(3)(B) from the ACCA residual clause invalidated
in Johnson). The Court in Johnson