United States District Court, N.D. West Virginia
RUBIN C. SLADE, JR., Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER DENYING § 2255
MOTION [DKT. NO. 1] AND DISMISSING CASE WITH
M. KEELEY UNITED STATES DISTRICT JUDGE.
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). For the reasons that follow, the Court
DENIES the motion (Dkt. No. 1) and
DISMISSES this case WITH
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).
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.
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).
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
(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).
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
on the Supreme Court's decisions in Johnson and
Welch, Slade asserts four grounds for relief, which
the Court will address seriatim.