Jones v. United States

• Decision Date: 10 January 2020
• Docket Number: NO. 5:16-CV-297-FL,NO. 5:13-CR-141-FL-1,5:13-CR-141-FL-1,5:16-CV-297-FL
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: NICOLE ESTELLA JONES, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

NICOLE ESTELLA JONES, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

NO. 5:13-CR-141-FL-1

NO. 5:16-CV-297-FL

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

January 10, 2020

ORDER

This matter is before the court on respondent's motion for relief pursuant to Federal Rule Civil Procedure 60(b), (DE 70).The motion was fully briefed and in this posture the issues raised are ripe for decision.For the reasons stated below and in open court on January 9, 2020, the court grants the motion, vacates its August 30, 2019, order and judgment granting habeas relief, and denies petitioner's motion to vacate, set aside, or correct sentence, (DE 53).

BACKGROUND

On June 14, 2013, petitioner pleaded guilty to one count of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(count one), and one count of brandishing a firearm during and in relation to a crime of violence and aiding abetting same, in violation of 18 U.S.C. § 924(c)(1)(A)and2(count two).On December 20, 2013, the court sentenced petitioner to 108 months' imprisonment on count one and 84 months' imprisonment on count two, to be served consecutively, producing an aggregate custodial sentence of 192 months' imprisonment.

On May 31, 2016, petitioner filed motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255, asserting that her § 924(c) conviction (count two) should be vacated in light of Johnson v. United States, 135 S. Ct. 2551(2015).At respondent's request, the court stayed the § 2255 proceedings pending the United States Court of Appeals for the Fourth Circuit's resolution of United States v. Simms, 914 F.3d 229(4th Cir.2019).On July 18, 2019, the court lifted the stay and directed the parties to file supplemental briefing addressing the effect of SimmsandUnited States v. Davis, 139 S. Ct. 2319(2019) on petitioner's motion.On August 29, 2019, respondent filed response to the court's order conceding that petitioner's § 924(c) conviction should be vacated, and petitioner resentenced.On August 30, 2019, the court entered order granting petitioner's § 2255 motion, which vacated her conviction on count two and her sentence in its entirety.The court scheduled petitioner's resentencing hearing on count one for January 9, 2020.

On December 27, 2019, respondent filed the instant motion for relief from judgment pursuant to Federal Rule Civil Procedure 60(b).As discussed further below, respondent argues it erroneously consented to habeas relief and that the court erred by vacating petitioner's § 924(c) conviction.Respondent requests that the court vacate its August 30, 2019, order and judgment, and reinstate petitioner's original judgment of conviction.Petitioner filed response in opposition on December 30, 2019.

On January 9, 2020, the court held hearing on respondent's motion and granted the motion in open court with written order to follow.

DISCUSSION

A.Standard of Review

A petitioner seeking relief pursuant to 28 U.S.C. § 2255 must show that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was withoutjurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack."28 U.S.C. § 2255(a)."Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto."Id.§ 2255(b).

Turning to respondent's motion for relief from judgment, Rule 60(b) allows the court to "relieve a party . . . from a final judgment, order or proceeding" on specified grounds.Fed. R. Civ. P. 60(b)."To prevail, a party must [make a threshold showing demonstrating]: (1) timeliness, (2) a meritorious defense, (3) a lack of unfair prejudice to the opposing party, and (4) exceptional circumstances."SeeWells Fargo Bank, N.A. v. AMH Roman Two NC, LLC, 859 F.3d 295, 299(4th Cir.2017).If the moving party makes this threshold showing, the inquiry turns to whether one of the six specific subsections of Rule 60(b) authorize relief.Id.;Fed. R. Civ. P. 60(b).Here, respondent moves for relief under subsection (b)(1), which authorizes the court to grant relief from a final judgment on the basis of "mistake, inadvertence, surprise, or excusable neglect."Fed. R. Civ. P. 60(b)(1).The motion must be "made within a reasonable time - and for [subsection (b)(1)] no more than a year after the entry of the judgment or order or the date of the proceeding."Fed. R. Civ. P. 60(c)(1).

B.Analysis

1.Legal Error in the Court's Judgment

The court first explains the error in its August 30, 2019, order and judgment, which granted petitioner's § 2255 motion and vacated her conviction on count two.Pursuant to 18 U.S.C. § 924(c), a person convicted of using or carrying a firearm, "during and in relation to any crime ofviolence or drug trafficking crime" and who brandishes said firearm is subject to a mandatory minimum seven years' imprisonment for the first conviction.18 U.S.C. § 924(c)(1)(A)(ii).The sentence shall run consecutive to any sentence imposed for the predicate crime of violence or drug trafficking crime.Id.§ 924(c)(1)(A).Section 924(c)(3) defines crime of violence as an 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, 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.

Id.§ 924(c)(3)(A)-(B).

Davis and Simms held that § 924(c)(3)(B)(the "residual clause") is unconstitutionally vague, thereby rendering invalid § 924(c) convictions that were based on the residual clause definition of crime of violence.Davis, 139 S. Ct. at 2336;Simms, 914 F.3d at 237.Simms further holds that conspiracy to commit Hobbs Act robbery is not a crime of violence under § 924(c)(3)(A)(the "elements clause").Simms, 914 F.3d at 233-34.Accordingly, in the Fourth Circuit, a § 924(c) conviction cannot be predicated on conspiracy to commit Hobbs Act robbery.Seeid. at 233-34, 237.

Here, the criminal information charged petitioner with conspiracy to commit Hobbs Act robbery (count one), and brandishing a firearm during a crime of violence, in violation of § 924(c)(1)(count two).When the parties initially agreed to habeas relief, they believed the predicate "crime of violence" supporting petitioner's conviction on count two was conspiracy to commit Hobbs Act robbery because that was the criminal offense charged in count one.Respondent therefore consented to habeas relief because, as set forth above, conspiracy to commitHobbs Act robbery cannot serve as the predicate offense supporting petitioner's § 924(c) conviction.SeeDavis, 139 S. Ct. at 2336;Simms, 914 F.3d at 233-34, 237.Based on that concession, the court vacated petitioner's § 924(c) conviction in its August 30, 2019, order.

Unfortunately, neither the parties nor the court took into account the charging text in the criminal information.Count two, to which petitioner pleaded guilty, charges that:

On or about April 14, 2011, [petitioner] knowingly used and carried a firearm during and in relation to a crime of violence for which the defendant may be prosecuted in a court of the United States as alleged in Count One of this Information, that is, robbery affecting interstate commerce in violation of Title 18, United States Code, Section 1951, and possessed the firearm in furtherance of said crime, and said firearm was brandished, in violation of Title 18, United States Code, Sections 924(c)(1)(A)and2.

(Criminal Information (DE 18)at 2(emphasis added)).To the extent this language sufficiently alleges that the predicate crime of violence is substantive Hobbs Act robbery, and the record supports that petitioner pleaded guilty to violating § 924(c) by committing substantive Hobbs Act robbery, petitioner's § 924(c) conviction is valid and the court should not have granted habeas relief.¹SeeUnited States v. Mathis, 932 F.3d 242, 266 & n.24(4th Cir.2019)(holding substantive Hobbs Act robbery is a valid predicate crime of violence for purposes of § 924(c)(3)(A)).

Petitioner argues that count two is ambiguous as to the precise predicate crime supporting petitioner's § 924(c) conviction.Count two charges the predicate crime of violence is "as alleged in Count One of this Information, that is, robbery affecting interstate commerce in violation ofTitle 18, United States Code Section 1951."(Criminal Information (DE 18)at 2).Because count one alleges conspiracy to commit Hobbs Act robbery, and not the substantive Hobbs Act robbery identified in the "that is" clause of count two, petitioner argues that count two is ambiguous and, construing the ambiguity against the government, the court should find petitioner's conviction was predicated on conspiracy to commit Hobbs Act robbery.

The criminal information and record of petitioner's arraignment do not support petitioner's argument.Count one indeed alleges conspiracy to commit Hobbs Act robbery, but it also identifies numerous overt acts committed by defendant in furtherance of the conspiracy, including a substantive Hobbs Act robbery perpetrated on April 14, 2011.(Id. at 1-2).The first sentence of count two charges that petitioner violated § 924(c) on or about April 14, 2011, "as alleged in Count One" and therefore refers to the April 14, 2011, substantive Hobbs Act robbery charged as an overt act in count one.(Seeid.).

Furthermore, at petitioner's arraignment, she admitted under oath in open court that she"on or about April 14 of 2011 . . . aiding and abetting another [did] use and carry a firearm during and in relation to a crime of violence as charged in . . . Count...