DARBY v. UNITED STATES OF AMERICA
Filing
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OPINION. Signed by Judge Susan D. Wigenton on 7/12/2018. (JB, )
*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HANZHA DARBY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Civil Action No. 18-10654 (SDW)
OPINION
WIGENTON, District Judge:
Presently before the Court is Petitioner Hanzha Darby’s amended motion to vacate
sentence brought pursuant to 28 U.S.C. § 2255 challenging his criminal conviction and sentence.
(ECF No. 4). Pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings, this Court is
required to screen the petition and determine whether it “plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief.” For the reasons set forth below, this
Court will deny the petition and deny Petitioner a certificate of appealability.
I. BACKGROUND
Because Petitioner’s sole claim is without merit, only a brief recitation of the background
of this matter is necessary for the purposes of this opinion. On August 14, 2013, Petitioner,
Hanzha Darby pled guilty to carjacking in violation of 18 U.S.C. § 2119 and brandishing of a
firearm in furtherance of a crime of violence, specifically carjacking, in violation of 18 U.S.C. §
924(c)(1)(A)(ii). (See Docket No. 13-56 at ECF No. 47). Petitioner was thereafter sentenced on
March 25, 2015, to 144 months imprisonment. (Docket No. 13-56 at ECF No. 104). Petitioner
did not appeal his conviction or sentence.
Over a year later, on May 16, 2016, Petitioner filed a letter which this Court recharacterized
as a motion to vacate sentence pursuant to 28 U.S.C. § 2255 in which he argued that his carjacking
conviction was no longer sufficient to sustain his firearm conviction following the Supreme
Court’s decision in Johnson v. United States, --- U.S. ---, 135 S. Ct. 2551 (2015). (Docket No.
16-3110 at ECF No. 1). Petitioner, however, chose to withdraw that petition. (Docket No. 163110 at ECF No. 3). Petitioner’s first § 2255 motion was thus dismissed without prejudice as
withdrawn on June 29, 2016. (Docket No. 16-3110 at ECF No. 4). Nearly two years later, on
June 12, 2018, Petitioner filed a new § 2255 motion raising a nearly identical claim to that raised
in his withdrawn petition. (ECF No. 1). The only real difference between the claims raised in
Petitioner’s current petition and his withdrawn petition is Petitioner’s newfound reliance upon the
Supreme Court’s recent decision in Sessions v. Dimaya, --- U.S. ---, 138 S. Ct. 1204 (2018), as
well as Johnson to support his argument that portions of § 924(c) are unconstitutionally vague and
that his carjacking conviction no longer qualifies as a crime of violence sufficient to support his
weapons offense. (See ECF Nos. 1, 4).
II. DISCUSSION
A. Legal Standard
A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 challenging
the validity of his or her sentence. Section 2255 provides, in relevant part, as follows:
A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to
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impose such a 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. Unless the moving party claims a jurisdictional defect or a constitutional
violation, to be entitled to relief the moving party must show that an error of law or fact constitutes
“a fundamental defect which inherently results in a complete miscarriage of justice, [or] an
omission inconsistent with the rudimentary demands of fair procedure.” United States v. Horsley,
599 F.2d 1265, 1268 (3d Cir. 1979) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)), cert.
denied 444 U.S. 865 (1979); see also Morelli v. United States, 285 F. Supp. 2d 454, 458-59 (D.N.J.
2003).
Pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings, this Court must
preliminarily review Petitioner’s amended motion to vacate and “dismiss the motion” if it “plainly
appears from the motion, any attached exhibits, and the record of prior proceedings that the moving
party is not entitled to relief.” Pursuant to this rule, a district court is “authorized to dismiss
summarily any habeas petition that appears legally insufficient on its face.” McFarland v. Scott,
512 U.S. 849, 856 (1994).
B. Analysis
1. An evidentiary hearing is not required to resolve Petitioner’s claims
A district court need not hold an evidentary hearing on a motion to vacate where “the
motion and files and records of the case conclusively show that the prisoner is entitled to no relief.”
28 U.S.C. § 2255(b); United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005); United States v.
Day, 969 F.2d 39, 41-42 (3d Cir. 1992). “Where the record, supplemented by the trial judge's
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personal knowledge, conclusively negates the factual predicates asserted by the petitioner or
indicate[s] that petitioner is not entitled to relief as a matter of law, no hearing is required.” Judge
v. United States, 119 F. Supp. 3d 270, 280 (D.N.J. 2015); see also Government of Virgin Islands
v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985); see also United States v. Tuyen Quang Pham,
587 F. App’x 6, 8 (3d Cir. 2014); Booth, 432 F.3d at 546. Because Petitioner’s sole claim is
without merit as a matter of law, no hearing is necessary to resolve this matter.
2. Petitioner’s Johnson/Dimaya claim is without merit
Petitioner argues in his current motion that the residual clause of § 924(c) is
unconstitutionally vague pursuant to Johnson and Dimaya and that carjacking is therefore not a
crime of violence sufficient to support his conviction under § 924(c). Even if Petitioner could
show that this claim should not be barred by § 2255’s one year limitations period,1 his claim is
Although the Court need not rest its decision on the time bar issue as Petitioner’s sole claim is
without merit, it appears from the record of this matter that Petitioner’s current motion is most
likely time barred. Motions brought pursuant to 28 U.S.C. are subject to a one year statute of
limitations. 28 U.S.C. § 2255(f). That limitation period begins to run from the latest of the
following events: the date on which the Petitioner’s conviction becomes final, which includes the
time in which a Petitioner could have filed an appeal where he fails to do so, see Kapral v. United
States, 166 F.3d 565, 577 (3d Cir. 1999); the date on which an impediment created by the
Government is removed; the date on which the right asserted was first recognized by the Supreme
Court where a new right has been recognized by the Court and made retroactive to cases on
collateral review; or the date on which the facts supporting the claim first became discoverable
through due diligence. See 28 U.S.C. § 2255(f)(1)-(4). As a criminal defendant must file his
notice of appeal from his conviction within fourteen days, the conviction of a petitioner who fails
to file a direct appeal becomes final for statute of limitations purposes fourteen days after his
sentencing. See Johnson v. United States, 590 F. App’x 176, 177 (3d Cir. 2014); see also Kapral,
166 F.3d at 577; Fed. R. App. P. 4(b)(1)(A)(i). Petitioner’s conviction thus became final more
than three years ago when he failed to file an appeal, and his current motion would only be timely
if there was some basis for a later starting date. Although Petitioner asserts that Dimaya should
provide him a later start date for the limitations period, the Supreme Court in Dimaya stated that
its holding was no more than a “straightforward application” of the rule first announced in Johnson,
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utterly without merit as it ignores the fact that § 924(c)’s definition of a crime of violence would
still contain a valid force clause under which carjacking is categorically a crime of violence.
Section 924(c) provides a criminal penalty for any individual who possesses, brandishes,
or discharges a firearm in relation to either a crime of violence or a drug trafficking crime. 18
U.S.C. § 924(c). The statute further defines a “crime of violence” to mean 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” (the “force” or “elements” clause), or (b)“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. § 924(c)(3). In
Johnson and Dimaya, the Supreme Court found that the nearly identical residual clauses of two
similar statutes were unconstitutionally vague. Dimaya, 138 S. Ct. at 1213-1223 (finding residual
clause of 18 U.S.C. § 16(b) unconstitutionally vague); Johnson, 135 S. Ct. at 2561-2563 (finding
residual clause of Armed Career Criminal Act unconstitutionally vague). Neither case, however,
invalidated the remaining elements clause of either of those two statutes. Thus, even if this Court
were to assume, arguendo, that Johnson and Dimaya render the residual clause of § 924(c)
unconstitutionally vague, Petitioner’s § 924(c) conviction would remain entirely valid so long as
his underlying crime, carjacking pursuant to 18 U.S.C. § 2119(1), was a “crime of violence” under
the elements clause of the statute.
and thus did announce a new rule of constitutional law. See 138 S. Ct. at 1213. Dimaya thus
cannot provide a later start date for the limitations period. See § 2255(f)(3). Petitioner’s one
year limitations period would instead run from June 2015 – when Johnson was decided and
announced the rule of constitutional law that Petitioner relies upon. Petitioner’s one year
limitations period thus appears to have expired two years ago absent some basis for equitable
tolling.
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While the Third Circuit has not directly addressed the issue of whether carjacking is under
all circumstances categorically a crime of violence under § 924(c), all of the Courts of Appeals to
do so post-Johnson have unanimously held that carjacking under § 2119 is categorically a crime
of violence under the elements clause of § 924(c). See, e.g., United States v. Gutierrez, 876 F.3d
1254, 1255-57 (9th Cir. 2017) ; United States v. Evans, 848 F.3d 242, 245-48 (4th Cir. 2017);
United States v. Jones, 854 F.3d 737, 740-41 (5th Cir. 2017); In re Smith, 829 F.3d 1276, 1280-81
(11th Cir. 2016). Unfortunately for Petitioner, he was not only convicted of carjacking, but also
of carjacking while brandishing a firearm in violation of 18 U.S.C. § 924(C)(1)(A)(ii). In United
States v. Robinson, the Third Circuit held that Hobbs Act robbery, which largely mirrors the
carjacking statute in that both statutes require that the defendant take either a motor vehicle or
property of another by force, violence or intimidation, see 18 U.S.C. § 2119; 18 U.S.C. 1951(b)(1),
is categorically a crime of violence when accompanied by a conviction for brandishing a weapon
under § 924(c)(1)(A)(ii). United States v. Robinson, 844 F.3d 137, 140-44 (3d Cir. 2016). In a
concurrence, one judge on the Robinson panel went further and followed the Second Circuit in
concluding that a crime involving such a requirement is always a crime of violence with or without
the additional brandishing requirement based on the language Hobbs Act robbery shares with the
carjacking statute. Id. at 151 (Fuentes, J., concurring, citing United States v. Hill, 832 F.3d 135
(2d Cir. 2016), amended 890 F.3d 51 (2018)). In United States v. Foster, --- F. App’x ---, 2018
WL 2331764, at *2 n. 5 (3d Cir. May 23, 2018), the Third Circuit applied Robinson and found that
carjacking is also categorically a crime of violence when accompanied by a conviction for
brandishing a weapon. Thus, the Third Circuit has concluded that carjacking, when accompanied
by a conviction for brandishing a weapon under § 924(c)(1)(A)(ii), is categorically a crime of
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violence pursuant to the elements clause of § 924(c). Because carjacking, when accompanied by
the brandishing of a weapon, is categorically a crime of violence under Third Circuit case law and
because Petitioner pled guilty to both carjacking and brandishing a weapon, his conviction is
categorically a crime of violence under the elements clause of § 924(c), and his conviction is
therefore proper even assuming that Johnson renders § 924(c)’s residual clause invalid.
Petitioner’s sole claim is thus clearly without merit, and his motion to vacate sentence must be
denied.
III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), the petitioner in a § 2255 proceeding may not appeal from
the final order in that proceeding unless he makes “a substantial showing of the denial of a
constitutional right.” “A petitioner satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his constitutional claims or that jurists could
conclude that the issues presented here are adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Because jurists of reason could not disagree with this Court’s conclusion that Petitioner’s sole
claim is clearly without merit, Petitioner has failed to make a substantial showing of the denial of
a constitutional right, and no certificate of appealability shall issue.
IV. CONCLUSION
For the reasons stated above, Petitioner’s amended motion to vacate sentence (ECF No. 4)
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is DENIED, and Petitioner is DENIED a certificate of appealability.
An appropriate order
follows.
Dated: July 12, 2018
s/ Susan D. Wigenton_
Hon. Susan D. Wigenton,
United States District Judge
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