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United States v. Ross

United States District Court, D. Kansas

September 4, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ROLAND ROSS, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Petitioner Roland Ross' Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 59). Petitioner contends that his conviction and sentence are in error because of the Supreme Court's recent decision in United States v. Davis[1] holding that the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. Because Petitioner's reliance on Davis is misplaced, the Court denies the motion without holding an evidentiary hearing.

         I. Factual and Procedural Background

          The facts surrounding Petitioner's judgment of conviction are as follows. On June 1, 2016, Petitioner, along with co-defendant Michael Ray Phillips, Jr., was indicted by a grand jury with one count of Hobbs Act robbery under 18 U.S.C. § 1951 and one count of brandishing a firearm during and in relation to a crime of violence, namely, the Hobbs Act robbery set forth in Count One of the Indictment, under 18 U.S.C. § 924(c).

         On August 22, 2016, Petitioner entered a guilty plea to Count Two of the Indictment- brandishing a firearm during and in relation to a crime of violence. The Court sentenced Petitioner to 108 months of imprisonment. Petitioner filed a direct appeal to the Tenth Circuit Court of Appeals, and on November 29, 2017, the Tenth Circuit affirmed his sentence.

         On June 10, 2019, Petitioner filed this Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. He moves to set aside his sentence in light of the Davis decision. The Government opposes Petitioner's motion.

         II. Legal Standard

         Under 28 U.S.C. § 2255(a),

fa 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 impose such 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.

         According to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts,

the judge who receives the motion must properly examine it. 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, the judge must dismiss the motion.... If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

         The court must hold an evidentiary hearing on a § 2255 motion “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”[2] The petitioner must allege facts that, if proven, would warrant relief from his conviction or sentence.[3] An evidentiary hearing is not necessary where a § 2255 motion contains factual allegations that are contradicted by the record, inherently incredible, or when they are conclusions rather than statements of fact.[4]

         III. Analysis

         In United States v. Davis, the Supreme Court addressed the constitutionality of 18 U.S.C. § 924(c), which “threatens long prison sentences for anyone who uses a firearm in connection with ...


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