United States District Court, N.D. Mississippi, Oxford Division
Sharion Aycock U.S. DISTRICT JUDGE
matter comes before the court on the motion of Marcus
Westbrook to vacate, set aside, or correct his sentence under
28 U.S.C.A. §2255. The government has responded to the
motion, and the matter is ripe for resolution.
and Procedural Posture
was indicted for aiding and abetting armed bank robbery in
violation of 18 U.S.C.A. §2113(a) and (d) (Count I) and
brandishing a firearm in the furtherance of a violent crime
in violation of 18 U.S.C.A. §924(c)(1)(A) (Count II).
ECF doc. 1. Westbrook pleaded guilty to Counts I and II. ECF
doc. 60. As a result, Westbrook was sentenced to serve a term
of 28 months on Count I and 84 months on Count II, to be
served consecutively. ECF doc. 120. Westbrook appealed his
sentence, which was affirmed on May 2, 2012. ECF doc. 142. On
June 23, 2016, Westbrook filed a motion to vacate, set aside
or correct his sentence pursuant to 28 U.S.C.A. §2255.
ECF doc. 240. Westbrook asserts that, pursuant to the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015), his conviction for aiding and abetting
an armed bank robbery in Count I does not qualify as a crime
of violence. As such, Westbrook argues that his sentence in
Count II is improper. For the reasons discussed herein,
Westbrook is not entitled to relief under 28 U.S.C.A.
of §2255 Review
are four grounds upon which a federal prisoner may seek to
vacate, set aside, or correct his sentence: (1) that the
sentence was imposed in violation of the Constitution or laws
of the United States; (2) that the court was without
jurisdiction to impose the sentence; (3) that the sentence
exceeds the statutory maximum sentence; or (4) that the
sentence is “otherwise subject to collateral
attack.” 28 U.S.C. §2255; see United States v.
Cates, 952 F.2d 149, 151 (5thCir.1992). The
scope of relief under §2255 is the same as that of a
petition for a writ of habeas corpus.
Cates, 952 F.2d at 151.
defendant seeking relief under 28 U.S.C. §2255 may not
do so to raise issues that could have been raised on appeal.
United States v. Walling, 982 F.2d 447, 448-449
(10th Cir. 1992). A petitioner may not raise
constitutional issues for the first time on post-conviction
collateral review unless he shows cause for failing to raise
the issue on direct appeal and actual prejudice resulting
from the error. United States v. Pierce, 959 F.2d
1297, 1301 (5th Cir. 1992), cert. denied,
506 U.S. 1007 (1992); United States v. Shaid, 937
F.2d 228, 232 (5th Cir. 1991). The burden of
showing “cause, ” an “objective factor
external to the defense, ” rests with the petitioner.
McCleskey v. Zant, 111 S.Ct. 1454, 1470 (1991). No
other types of errors may be raised on collateral review
unless the petitioner demonstrates that the error could not
have been raised on direct appeal, and if not corrected,
would result in a complete miscarriage of justice.
Pierce, 959 F.2d at 1301; Shaid, 937 F.2d
at 232. Further, if a claim is raised and considered on
direct appeal, a defendant may not raise the issue in a later
collateral attack. Moore v. United States, 598 F.2d
439, 441 (5th Cir. 1979).
asserts that under Johnson, supra, his conviction
for aiding and abetting an armed bank robbery is not a crime
of violence and, as such, his conviction and sentence in
Count II is invalid. In Johnson, supra, the Supreme
Court considered the constitutionality of the “residual
clause” of the Armed Career Criminal Act. The A.C.C.A.
provides for the enhanced sentencing of a convicted felon who
“has three previous convictions … for a violent
felony or a serious drug offense, or both….” 18
U.S.C.A. §924(e)(1). The A.C.C.A. further defines a
“violent felony” as a crime punishable by more
than one year that:
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves the use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to
18 U.S.C.A. §924(e)(2)(B)(emphasis added). The
Johnson decision specifically addresses the
“residual clause” of subsection (ii), which is
italicized above. The Court found that, for the purposes of
the A.C.C.A., “the indeterminacy of the wide-ranging
inquiry required by the residual clause both denies fair
notice to defendants and invites arbitrary enforcement by
judges.” Johnson, 135 S.Ct. at 2557. As such,
the Johnson Court ultimately held that the residual
clause of the A.C.C.A. was unconstitutionally
vague. Id. at 2563.
Westbrook was not sentenced pursuant to the residual clause
of the A.C.C.A., 18 U.S.C.A. §924(e)(2)(B)(ii), which
was the subject of the Johnson decision. On the
contrary, in Count I, Westbrook pleaded guilty to aiding and
abetting armed bank robbery pursuant to 18 U.S.C.A.
§2113(a) and (d). In Count II, Westbrook pleaded guilty
to using, carrying, and ...