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Slade v. United States

United States District Court, N.D. West Virginia

August 16, 2019

RUBIN C. SLADE, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION [DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE

          IRENE M. KEELEY UNITED STATES DISTRICT JUDGE.

         Pending before the Court is the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence filed by the pro se petitioner, Rubin C. Slade, Jr. (“Slade”) (Dkt. No. 1).[1] For the reasons that follow, the Court DENIES the motion (Dkt. No. 1) and DISMISSES this case WITH PREJUDICE.

         I. BACKGROUND

         On June 16, 2004, a jury convicted Slade of one count of armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d), and one count of brandishing a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (No. 2:03CR1, Dkt. No. 69). Both convictions arose out of a December 5, 2002 bank robbery in Elkins, West Virginia. Id. After receiving concurrent life sentences of imprisonment on both counts on March 31, 2005 (No. 2:03CR1, Dkt. No. 94), Slade appealed to the United States Court of Appeals for the Fourth Circuit, which affirmed his conviction and sentence on June 6, 2007 (No. 2:03CR1, Dkt. Nos. 96, 118). Subsequently, on June 16, 2009, Slade filed his first motion under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence, which was denied as untimely (No. 2:09CV72, Dkt. Nos. 1, 8).

         Slade filed his second motion under § 2255 on May 9, 2016 (No. 2:16CV38, Dkt. No. 1), which United States Magistrate Judge Michael J. Aloi recommended the Court deny as a second or successive motion (No. 2:16CV38, Dkt. No. 4). After receiving a copy of this recommendation, Slade sought certification from the Fourth Circuit to file a second or successive motion under § 2255(h) (Dkt. No. 136). After he received certification (No. 2:03CR1, Dkt. No. 141), Slade filed the instant § 2255 motion (Dkt. No. 1 at 5-11), which is fully briefed and ripe for disposition.[2]

         II. APPLICABLE LAW

         Title 28 U.S.C. § 2255(a) permits federal prisoners, who are in custody, to file a motion to vacate, set aside, or correct a sentence if “the sentence was imposed in violation of the Constitution or laws of the United States, ” if “the court was without jurisdiction to impose such sentence, ” or if “the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” A petitioner bears the burden of proving any of these grounds by a preponderance of the evidence. See Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

         In this case, relying on Johnson v. United States, 135 S.Ct. 2551 (2015), Slade alleges that his sentence was imposed in violation of the Constitution of the United States. In Johnson, the Supreme Court reviewed a challenge to the Armed Career Criminal Act (“ACCA”). Under the ACCA, an individual who violates 18 U.S.C. § 922(g), and has three previous convictions for a “violent felony, ” is subject to an enhanced sentence of not less than fifteen years. 18 U.S.C. § 924(e)(1). The term “violent felony” is defined within the ACCA in three different clauses: the force clause, the enumerated clause, and the residual clause. Together, these clauses define a “violent felony” to include “any crime punishable by imprisonment for a term exceeding one year . . . that”:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [(force clause)]; or
(ii) is burglary, arson, or extortion, involves use of explosives [(enumerated clause)], or otherwise involves conduct that presents a serious potential risk of physical injury to another [(residual clause)].

18 U.S.C. § 924(e)(2)(B).

         In Johnson, the defendant was subject to a sentencing enhancement under § 924(e)(1) because he had three previous convictions for a violent felony. Johnson, 135 S.Ct. at 2556. The Supreme Court, however, determined that one of the defendant's three previous convictions was not a violent felony under the ACCA because the residual clause on which the sentencing court had relied was unconstitutionally vague in violation of the Due Process Clause of the Fifth Amendment. Id. at 2563. Subsequently, in Welch v. United States, 136 S.Ct. 1257, 1265 (2016), the Supreme Court held that the new rule of constitutional law announced in Johnson was a substantive rule to be applied retroactively on collateral review.

         III. DISCUSSION

         Based on the Supreme Court's decisions in Johnson and Welch, Slade asserts four grounds for relief, which the Court will address seriatim.

         A. ...


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