United States District Court, E.D. Louisiana
ORDER AND REASONS
L.C. FELDMAN U.S. DISTRICT JUDGE.
the Court is Gary Woods's successive motion to vacate,
set aside, or correct sentence under 28 U.S.C. § 2255
pursuant to United States v. Davis, 139 S.Ct. 2319
(2019). For the reasons that follow, the motion is GRANTED.
24, 2007, Gary Woods pled guilty to three counts of a
superseding bill of information charging: conspiracy to
commit Hobbs Act robbery, in violation of 18 U.S.C. §
1951(a)(Count 1), brandishing a firearm in furtherance of a
“crime of violence, ” namely, conspiracy to
commit Hobbs Act robbery, in violation of 18 U.S.C. §
924(c)(1)(A)(ii)(Count 2), and one count of being a felon in
possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2)(Count 3). At that time,
“crime of violence” was defined as an offense
that is a felony and either “(A) has as an element the
use, attempted use, or threatened use of physical force
against the person or property of another [known as the
‘force clause'], ” 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 [known as the
‘residual clause'].” 18 U.S.C. §
924(c)(3). Additionally, at the time of conviction,
conspiracy to commit Hobbs Act robbery qualified as a
“crime of violence” under the residual clause,
making it a valid predicate for a § 924(c) offense.
February 14, 2008, Mr. Woods was sentenced to serve an
imprisonment term of 218 months, which consisted of a
134-month sentence for the conspiracy conviction, along with
a concurrent 120-month sentence for the Count 3
felon-in-possession of a firearm conviction, plus a
consecutive 84-month sentence for the 924(c)
conviction. Mr. Woods did not directly appeal his
conviction or sentence.
Woods filed a prior § 2255 habeas petition, which was
denied on the merits on May 28, 2014. Mr. Woods appealed, but
then withdrew his appeal. Mr. Woods later filed three motions
seeking authorization from the Fifth Circuit to file a
successive § 2255 motion to challenge the
constitutionality of his § 924(c) conviction. In the
first two requests, Woods invoked United States v.
Johnson, 135 S.Ct. 2551 (2015). In his third request, he
invoked Sessions v. Dimaya, 138 S.Ct. 1204 (2018).
Because the Supreme Court had not yet made Johnson
retroactive to cases on collateral review, the Fifth Circuit
denied Woods's first request. The Fifth Circuit denied
his second and third requests for authorization based on its
determination that § 924(c)(3)(B) was not invalidated by
the Supreme Court's decisions in Johnson or
Dimaya and, therefore, Woods failed to make the
requisite showing under 28 U.S.C. § 2255(h)(2).
24, 2019, reviewing a case appealed from the Fifth Circuit,
the Supreme Court held that the residual clause in §
924(c)'s “crime of violence” definition
(§ 924(c)(3)(B)), is unconstitutionally vague.
United States v. Davis, 139 S.Ct. 2319, 2336 (2019).
The Fifth Circuit decision underlying Davis
additionally held that, in light of the invalidation of the
residual clause, conspiracy to commit Hobbs Act robbery does
not qualify as a crime of violence under § 924(c).
See United States v. Davis, 903 F.3d 483, 485 (5th
Cir. 2018); see also United States v. Lewis, 907
F.3d 891, 894-95 (5th Cir. 2018). Invoking Davis,
Woods requested appointment of counsel. The Court granted the
request and counsel was appointed. In October 2019, the Fifth
Circuit authorized Woods to file a successive habeas
petition. Woods now moves to vacate his § 924(c)
conviction; he submits that his § 924(c) conviction
based on the now-unconstitutional residual clause is no
longer valid and his 84-month sentence is unconstitutional
because the predicate offense of “conspiracy to commit
Hobbs Act robbery” does not qualify as a “crime
of violence” under the remaining portion of the
definition, § 924(c)(3)(A), the “force
petitioner may file a habeas corpus petition pursuant to 28
U.S.C. § 2255, claiming that his conspiracy-predicated
§ 924(c) conviction and resulting 84-month sentence
"was imposed in violation of the Constitution or the
laws of the United States." 28 U.S.C. §
2255. “Relief under 28 U.S.C. § 2255
is reserved for transgressions of constitutional rights and
for a narrow range of injuries that could not have been
raised on direct appeal and would, if condoned, result in a
complete miscarriage of justice.” United States v.
Gaudet, 81 F.3d 585, 589 (5th Cir. 1996)(citations and
internal quotation marks omitted). A claim of error that is
neither constitutional nor jurisdictional is not cognizable
in a section 2255 proceeding unless the error constitutes a
“fundamental error” that “renders the
entire proceeding irregular or invalid.” United
States v. Addonizio, 442 U.S. 178, 185 (1979).
Court "may entertain and determine such motion without
requiring the production of the prisoner at the
hearing." 28 U.S.C. § 2255. Having considered the
record, the motion, and the government's response, the
Court finds that the record is adequate to address the
petitioner's claims and to resolve them as a matter of
law. Accordingly, no evidentiary hearing is necessary.
See United States v. Walker, 68 F.3d 931, 934 (5th
Cir. 1995)(“if on th[e] record we can conclude as a
matter of law that [the petitioner] cannot establish one or
both of the elements necessary to establish his
constitutional claim, then an evidentiary hearing is not
habeas petitioner has the burden of establishing his claims
by a preponderance of the evidence. Wright v. United
States, 624 F.2d 557, 558 (5th Cir. 1980)(citations
omitted). If the Court finds that the petitioner is entitled
to relief, it “shall vacate and set the judgment aside
and shall discharge the prisoner or resentence him or ...