Opinion
Civil No. 16-3791 (KM)
07-10-2019
SHAROD CULP, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
In June 2016, petitioner, Sharod Culp, filed, by counsel, a motion to vacate, set aside, or correct his sentence, under 28 U.S.C. § 2255, based on the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015). The petition asserts that Mr. Culp's conviction for carjacking under 18 U.S.C. § 2119(1) was not a proper predicate offense for his conviction for brandishing a weapon in furtherance of a violent felony under 18 U.S.C. § 924(c). Specifically, the petition argues that carjacking under § 2119 is not categorically a violent felony under the "elements clause" of § 924(c)(3)(A) and that it could not be considered a violent felony under the "residual clause" of § 924(c)(3)(B), as the same residual clause in other statutes had been struck down as unconstitutionally vague. (See DE 1.)
The proceeding was stayed, first pursuant to Standing Order 16-2, and subsequently upon motion of the government pending a decision by the Supreme Court in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). In February 2019, I ordered the proceeding reopened, directing the government to file an answer and permitting petitioner time to file a reply brief. (DE 6.) The government filed a brief in opposition to the § 2255 motion on March 13, 2019, and a supplemental letter on March 21, 2019. The government argued that this Court need not decide the constitutionality of the residual clause of § 924(c), as carjacking should be considered a violent felony under the elements clause. In so arguing, it relied on the opinion of the Court of Appeals for the Third Circuit in United States v. Robinson, 844 F.3d 137 (3d Cir. 2016), (as well as its progeny), in which the Court applied a "modified categorical" approach to convictions under § 924(c); specifically, the Court considered the fact that the defendant was brandishing a firearm at the time in determining that the underlying robbery qualified as a violent felony. Petitioner has filed no reply.
On June 24, 2019, the Supreme Court issued an opinion in United States v. Davis, 139 S. Ct. 2319 (2019), that touches closely on the arguments raised by the government in opposition to Mr. Culp's § 2255 motion. Primarily, the Davis opinion struck down the residual clause of § 924(c) as unconstitutionally vague. It also conducted an in-depth analysis of the proper approach to determining whether the underlying crime should be considered a crime of violence. See id. at 2325-33. It is by no means clear that Davis changes the analysis of the carjacking offense at issue here, but in light of the altered constitutional landscape following Davis, I will authorize the respondent to submit a supplemental brief addressing the effect of Davis, and will give petitioner an opportunity to submit a supplemental reply on the same issue.
Accordingly, IT IS this 10th day of July 2019
ORDERED that, no later than August 10, 2019, respondent shall file a supplemental opposition to the § 2255 motion, addressing how the Supreme Court's decision in Davis affects its arguments, and specifically addressing if and how the Davis decision affects the analysis of the Third Circuit in United States v. Robinson, 844 F.3d 137; and it is further
ORDERED that within thirty (30) days after the filing of that supplemental opposition, petitioner may file a reply.
/s/_________
KEVIN MCNULTY
United States District Judge