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Parish v. USA

United States District Court, N.D. Mississippi, Greenville Division

April 13, 2018

WILBERT PARISH, JR. PETITIONER
v.
USA RESPONDENT

          MEMORANDUM OPINION

          MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE.

         This matter comes before the court on the motion of Wilbert Parish, Jr. 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.

         Facts and Procedural Posture

         Parish was indicted for aiding and abetting[1] armed bank robbery in violation of 18 U.S.C.A. §2113(a) and (d) (Count I); aiding and abetting the brandishing a firearm in the furtherance of a violent crime in violation of 18 U.S.C.A. §924(c)(1)(A) (Count II); and aiding and abetting a bomb threat in violation of 18 U.S.C.A. §844(e) (Count III). ECF doc. 12. Parish pleaded guilty to Counts I, II, and III of the indictment. ECF doc. 33. As a result, Parish was sentenced to a term of 78 months on Counts I and III, to run concurrently, and a mandatory term of 84 months on Count III to run consecutively to the sentences in Counts I and III. ECF doc. 39. Parish did not appeal his conviction and sentence.

         On June 23, 2016, Parish filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C.A. §2255 through counsel. ECF doc. 40. Thereafter, Parish filed a pro se Notice of Eligibility raising arguments similar to those raised by counsel. ECF doc. 41. Parish 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, Parish argues that his sentence in Count II is improper. For the reasons discussed herein, Parish is not entitled to relief under 28 U.S.C.A. §2255.

         Scope of §2255 Review

         There 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.

         A 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).

         The Johnson Decision

         Parish 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 another

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.[2] Id. at 2563.

         Parish's ...


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