Little v. United States

ORDER

Max O. Cogburn United States District Judge.

THIS MATTER is before the Court on Petitioner's Motion to Vacate Sentence under 28 U.S.C. § 2255, (Doc. No. 1). Also pending is the Government's Motion to Dismiss, (Doc. No. 22).

I. BACKGROUND

On April 3, 1996, a jury convicted Petitioner of: conspiracy to possess with intent to distribute and distribution of cocaine and cocaine base, in violation of 18 U.S.C. §§ 841(a)(1) and 846 (Count One); murder in aid of racketeering activity and aiding and abetting the same by murdering Titus Tyrone Murphy and aiding and abetting in said murder under N.C. Gen. Stat. § 14-17, in violation of 18 U.S.C. §§ 1959(a)(1) and 2; (Count Ten); using and carrying a firearm during a drug trafficking offense or a crime of violence, i.e. murder in aid of racketeering activity, in violation of 18 U.S.C. §§ 924(c)(1) and 2 (Count Eleven); using and carrying a firearm during a drug trafficking offense or a crime of violence, i.e. conspiracy to possess with intent to distribute cocaine and cocaine base, in violation of 18 U.S.C. § 924(c)(1) (Count Twelve); and possession of ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count Thirteen). (3:95-cr-105 (“CR”) Doc. Nos. 1, 64). The Court sentenced Petitioner to two life sentences for Counts

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One and Ten and 10 years' imprisonment for Count Thirteen, concurrent; and five years for Count Eleven and 20 years for Count Twelve, consecutive. (CR Doc. No. 75). On direct appeal Petitioner argued that: the evidence was insufficient to support his conviction of Count Ten; the sentence for Count One improperly included a cross-reference to first-degree murder; and the testimony of a cooperating witness was inadmissible. The Fourth Circuit affirmed, United States v. Little, 165 F.3d 912 (4^th Cir. 1998) and, on March 22, 1999, the United States Supreme Court denied certiorari, Little v. United States, 526 U.S. 1030 (1999).

In 2001, Petitioner filed a § 2255 Motion to Vacate that was dismissed with prejudice as time-barred and this Court denied reconsideration, case number 3:01-cv-379. The Fourth Circuit dismissed Petitioner's appeal. United States v. Little, 123 Fed.Appx. 113 (4^th Cir. 2005).

On May 3, 2007, the Court entered an Amended Judgment to correct a restitution matter; the Judgment was otherwise unchanged. See (CR Doc. Nos. 97, 100).

Petitioner filed numerous requests for post-conviction relief which were unsuccessful, as were the related appeals. See, e.g., United States v. Little, 2011 WL 9156864 (W.D. N.C. July 22, 2011); United States v. Little, 455 Fed.Appx. 315 (4^th Cir. 2011); United States v. Little, 533 Fed.Appx. 339 (4^th Cir. 2013); United States v. Little, 2021 WL 1394858 (W.D. N.C. April 13, 2021).

Petitioner filed the instant Motion to Vacate after obtaining authorization from the Fourth Circuit to file a “second or successive” petition pursuant to 28 U.S.C. §§ 2244 and 2255(h). (Doc. No. 1-1). The pro se Motion to Vacate, docketed on June 9, 2016, challenges the § 924(c) conviction in Count Eleven pursuant to Johnson v. United States, 576 U.S. 591 (2015). (Doc. No. 1). Counsel appeared on Petitioner's behalf and filed a Supplemental Motion to Vacate on October 14, 2016, arguing: the conviction and five-year sentence for Count Eleven should be vacated because the predicate offense of aiding and abetting murder in aid of racketeering charged in Count

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Ten is not a “crime of violence” under § 924(c)'s force clause; the Court lacked jurisdiction to convict or sentence Petitioner in Count Eleven because the Indictment fails to state an offense; and absent the § 924(c) conviction in Count Eleven, the offense charged in Count Twelve is not a “second or subsequent” conviction and the 20-year sentence is therefore invalid. (Doc. No. 5).

This case was stayed for several years pending developments in the case law. See (Doc. Nos. 8, 10, 12, 18, 20). On July 26, 2021, the United States filed a Motion to Dismiss, (Doc. No. 22), to which Petitioner has responded, (Doc. No. 23). The time to reply has expired and the matter is now ripe for disposition.

II. STANDARD OF REVIEW

A federal prisoner claiming that his “sentence was imposed in violation of the Constitution or the 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a).

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the arguments presented by Petitioner can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4^th Cir. 1970).

III. DISCUSSION

(1) Procedural Default

The United States argues that the Petitioner's Motion to Vacate is procedurally defaulted

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because he failed to raise his claims on direct appeal.

A § 2255 motion “may not do service for an appeal, ” and claims that should have been raised at trial or on appeal are procedurally defaulted unless an exception applies. United States v. Frady, 456 U.S. 152, 165 (1982). To overcome a procedural default, a petitioner must show either (1) “cause” and “actual prejudice” resulting from the errors complained of, or (2) that a “miscarriage of justice” would result from refusal to entertain the collateral attack. United States v. Mikalajunas, 186 F.3d 490, 492-93 (4^th Cir. 1999)(citing Frady, 456 U.S. at 167-68). “Cause” for procedural default exists “where a constitutional claim [was] so novel that its legal basis [was] not reasonably available to counsel.” Reed v. Ross, 468 U.S. 1, 16 (1984). “Actual prejudice” is shown by demonstrating that the error worked to petitioner's “actual and substantial disadvantage, ” rather than just creating a “possibility of prejudice.” Satcher v. Pruett, 126 F.3d 561, 572 (4^th Cir. 1997)(quoting Murray v. Carrier, 477 U.S. 478, 494 (1986)). To show that a “miscarriage of justice” would result from the court's failure to entertain the collateral attack, the movant must show “actual innocence by clear and convincing evidence.” Mikalajunas, 186 F.3d at 493.

Petitioner's § 2255 arguments are based on Johnson's holding that the Armed Career Criminal Act's residual clause is unconstitutionally vague. 576 U.S. at 591. The Supreme Court confirmed in United States v. Davis, 139 S.Ct. 2319 (2019) that § 924(c)(3)(B)'s residual clause is likewise unconstitutionally vague.

Assuming arguendo that Petitioner's § 924(c) challenge is sufficiently novel to constitute “cause, ” Petitioner has failed to show the necessary prejudice or actual innocence required to excuse any procedural default. Petitioner's conviction in Count Eleven is valid under § 924(c)'s force clause and thus his challenges to Count Eleven and, by extension, to Count Twelve, fail as a

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matter of law. See Section (2), infra. Petitioner cannot show any likelihood that the outcome of the proceeding would have been more favorable absent the alleged error, nor can he establish actual innocence in light of the overwhelming evidence presented at trial. Petitioner's Motion to Vacate is therefore procedurally defaulted from § 2255 review and is subject to dismissal.

(2) Merits

Even if Petitioner's Motion to Vacate were not procedurally defaulted from § 2255 review, it would be denied on the merits. Section 924(c) prohibits use or carrying a firearm “during and in relation to any crime of violence or drug trafficking crime….” 18 U.S.C. § 924(c)(1). Under § 924(c), a crime is one of violence if it either “has as an element the use, attempted use, or threatened use of physical force against the person or property of another, ” (the “force clause”) or “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, ” (the “residual clause”). 18 U.S.C.A. § 924(c)(3)(A)-(B). In Davis, the Supreme Court held that § 924(c)'s residual clause is unconstitutionally vague. Therefore, in order for a § 924(c) conviction to remain valid, the predicate offense must qualify as a crime of violence under § 924(c)'s force clause. “Force, ” as used in § 924(c)'s “force clause, ” means “a substantial degree of force” that is “capable of causing physical pain or injury to another person.” United States v. Evans, 848 F.3d 242, 245 (4^th Cir. 2017); see also United States v. Battle, 927 F.3d 160, 166 (4^th Cir. 2019) (“[A] crime requiring the ‘intentional causation' of injury requires the use of physical force.”) (quoting United States v. Castleman, 572 U.S. 157, 170 (2014)).

In determining whether an offense is a “crime of violence, ” courts employ either the categorical approach or the modified categorical approach. See Descamps v. United States, 570 U.S. 254, 258 (2013); United States v. Mathis, 932 F.3d 242, 263-64 (4^th Cir. 2019). The

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categorical approach applies to “indivisible” statutes, those that set out a single set of elements defining the crime. United States v. Bryant, 949 F.3d 168, 172 (4^th Cir. 2020). In applying that approach, a court must determine whether the elements of the crime of conviction “necessarily require the use, attempted use, or threatened use of force.” Id. (citations and...