United States District Court, D. Kansas
MEMORANDUM AND ORDER
F. MELGREN UNITED STATES DISTRICT JUDGE
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 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
Factual and Procedural Background
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).
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.
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
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
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.
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.” The petitioner must allege facts that, if
proven, would warrant relief from his conviction or
sentence. 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
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 ...