ROBERT G. DOUMAR, UNITED STATES DISTRICT JUDGE

Amanda Catherine Conner, Office of the Federal Public Defender, Andrew Anthony Protogyrou, Protogyrou Law, PLC, Alexander Christopher Zaleski, Protogyrou & Rigney, PLC, Norfolk, VA, for Petitioner.

Richard D. Cooke, United States Attorney's Office, Richmond, VA, V. Kathleen Dougherty, William David Muhr, United States Attorney's Office, Norfolk, VA, for Respondent.

ORDER

ROBERT G. DOUMAR, UNITED STATES DISTRICT JUDGE

This matter comes before the Court upon Xavier Rondell Davis' ("Petitioner") Second Motion to Vacate Conviction under 28 U.S.C. § 2255 ("Second § 2255 Motion"). ECF No. 179. For the reasons set forth herein, Petitioner's Second § 2255 Motion is DENIED .

I. FACTUAL AND PROCEDURAL HISTORY

On May 7, 2010, a federal grand jury sitting in Norfolk named Petitioner in a four-count criminal indictment charging him with Murder in Aid of Racketeering Activity, in violation of 18 U.S.C. §§ 1959(a)(1) and 2 (Count 1); two counts of Assault with a Dangerous Weapon in Aid of Racketeering Activity, in violation of 18 U.S.C. §§ 1959(a)(3) and 2 (Counts 2–3); and Use of a Firearm in Furtherance of a Crime of Violence, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2 (Count 4). ECF No. 24. On November 29, 2011, the Government filed a single-count criminal information charging Petitioner with Murder Resulting from Use of Firearm During and in Relation to a Crime of Violence, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 924(j) and 2. ECF No. 134.

On that same day, November 29, 2011, Petitioner appeared before the Court, waived indictment as to Count 1 of the criminal information, pled guilty to such count, and pled guilty to Counts 2 and 3 of the criminal indictment. See ECF No. 137, 140. On March 12, 2012, the Court sentenced Petitioner to a Guidelines sentence of 420 months in prison. ECF No. 150. Such term includes 210 months on Count 2 of the indictment, 210 months on Count 3 of the indictment to run consecutive to Count 2, and 420 months on Count 1 of the criminal information to run concurrently with all other counts. Id. Petitioner did not appeal.

On March 20, 2013, Petitioner filed a pro se motion for relief under 28 U.S.C. § 2255 alleging ineffective assistance of counsel, ECF No. 159, which the Court denied after full briefing, ECF No. 169. Nearly three years later, on June 27, 2016, Petitioner, by counsel, applied to the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") for authorization to file a successive § 2255 motion, and requested appointed counsel to assist with the same. See In re Xavier Rondell Davis, II, No. 16-9618 (4th Cir. June 27, 2016), Dkt. Nos. 2, 3. Petitioner also filed his proposed § 2255 motion with this Court on the same day. ECF No. 177. On June 30, 2016, the Fourth Circuit authorized Petitioner to file a second § 2255 motion on the ground that a new rule of constitutional law announced in Johnson v. United States, ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), which was made retroactive in Welch v. United States, ––– U.S. ––––, 136 S. Ct. 1257, 194 L.Ed.2d 387 (2016), may apply to his case. Id., Dkt. No. 9. The Fourth Circuit also appointed the Federal Public Defender to represent Petitioner for purposes of his Second § 2255 Motion. Id., Dkt. No. 11.

On June 30, 2019, with the Fourth Circuit's authorization, Petitioner's Second § 2255 Motion was deemed filed. ECF No. 179. In such motion, Petitioner argues that his conviction on Count 1 of the criminal information—Murder Resulting from Use of a Firearm During and in Relation to a Crime of Violence in violation of 18 U.S.C. § 924(j) —must be vacated in light of the Supreme Court's decision in Johnson. Id. Specifically, Petitioner argues that the crime of violence alleged or implied in his criminal information (i.e., Assault with a Dangerous Weapon in Aid of Racketeering Activity in violation of 18 U.S.C. § 1959(a)(3) ) fails to categorically satisfy the definition of "crime of violence" in § 924(c)(3) after Johnson. ECF No. 192. A key premise of Petitioner's argument was that the so-called "residual clause" contained in § 924(c)(3)(B) was unconstitutionally vague because, in Johnson, the Supreme Court struck down a nearly identical clause contained in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), as unconstitutionally vague. ECF No. 179 at 4–5. However, at the time Petitioner filed his Second § 2255 Motion, neither the Supreme Court nor the Fourth Circuit had specifically addressed the validity of the residual clause in § 924(c) after Johnson.

On July 11, 2016, the Court ordered the Government to answer or otherwise respond to Petitioner's Second § 2255 Motion. ECF No. 181. On July 21, 2016, the Government filed a Motion to Dismiss Petitioner's Second § 2255 Motion on the grounds that it failed to satisfy the statute of limitations imposed under 28 U.S.C. § 2255(f). ECF No. 182. In support, the Government argued that the "newly recognized" right in Johnson only applied to convictions under the ACCA, not § 924(c), and therefore Petitioner's Second § 2255 Motion did not trigger the limitations rule set forth in 28 U.S.C. § 2255(f)(3). Id. On August 1, 2016, Petitioner filed a response in opposition to the Government's Motion to Dismiss. ECF No. 183. In such response, Petitioner argued that the Court should not dismiss Petitioner's Second § 2255 Motion as time-barred, but rather hold the matter in abeyance pending the Fourth Circuit's decision on whether the "new rule" established in Johnson applied to the residual clause contained in § 924(c). Id. The Government filed its reply on August 11, 2016. ECF No. 184.

At the time of such briefing, there were multiple cases pending before the Fourth Circuit that raised the issue of whether the new rule in Johnson also invalidated the residual clause contained in § 924(c)(3)(B). See, e.g., United States v. Walker, No. 15-4301. Therefore, this Court found that it was in the interest of justice to withhold all rulings related to Petitioner's Second § 2255 Motion until the Fourth Circuit decided such issue.

On January 24, 2019, the Fourth Circuit held in a published decision that § 924(c)(3)(B) is void for vagueness because it requires the same flawed "conjectural exercise" as the statutes examined in Johnson and Sessions v. Dimaya, ––– U.S. ––––, 138 S. Ct. 1204, 200 L.Ed.2d 549 (2018). United States v. Simms, 914 F.3d 229, 236 (4th Cir. 2019). Five months later, the Supreme Court confirmed the Fourth Circuit's decision in Simms and held that § 924(c)(3)(B) is unconstitutionally vague. United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 2336, 204 L.Ed.2d 757 (2019).

With controlling precedent on this issue, the Court denied the Government's Motion to Dismiss. ECF No. 189. Further, the Court directed the Government to address Petitioner's Second § 2255 Motion on the merits, thereby ordering the parties to file position papers. Id. On October 15, 2019, both parties respectively filed their position papers. ECF Nos. 192, 194. Petitioner's Second § 2255 Motion is now before the Court. ECF No. 179.

II. PETITIONER'S SECOND § 2255 MOTION

Petitioner argues that he is entitled to relief under 28 U.S.C. § 2255 because the predicate offense—Assault with a Dangerous Weapon in Aid of Racketeering Activity in violation of 18 U.S.C. § 1959(a)(3) —for his § 924(j) conviction does not qualify as a crime of violence. ECF No. 192 at 2, 4. Accordingly, he asserts that his § 924(j) conviction for Murder Resulting from Use of a Firearm During and in Relation to a Crime of Violence should be vacated. Id. To such end, Petitioner contends that the Court should consider the common law definition of "assault," as 18 U.S.C. § 1959 does not define the same. Id. at 3. Common law assault includes attempted battery, which can consist of even the "slightest offensive touching." Id. Therefore, Petitioner concludes that federal assault cannot rise to the level of a crime of violence because it would then include even the slightest offensive touching. Id.

In response, the Government asserts that Petitioner's argument overlooks how federal assault is analyzed. ECF No. 194 at 8. In explaining such analysis, the Government relies on two recent cases that indicate federal assault—in the form of Assault with a Dangerous Weapon with Intent to do Bodily Harm, in violation or 18 U.S.C. § 113(a)(3), and Assault on a Federal Officer, in violation of 18 U.S.C. § 111(b) —qualifies as a crime of violence. Id. at 8–9. Relying on said cases, the Government concludes that Assault with a Dangerous Weapon in Aid of Racketeering Activity should also qualify as a crime of violence. Id.

A. APPLICABLE LAW

The Fourth Circuit has held that a § 2255 motion is the proper vehicle by which to attack a final sentence if that sentence was enhanced by a prior conviction that was later vacated. United States v. Dorsey, 611 F. App'x 767, 769 (4th Cir. 2015) (citing United States v. Gadsen, 332 F.3d 224, 228 (4th Cir. 2003) ). However, "vacatur alone does not entitle a petitioner to habeas relief;" it only entitles a petitioner to "seek review." United States v. Pettiford, 612 F.3d 270, 278 (4th Cir.2010) (citation omitted). To be granted relief, a petitioner must show that (i) the vacatur renders his federal sentence "unlawful" under 28 U.S.C. § 2255, id.; and (ii) the vacatur actually changed his Guidelines calculation, see Dorsey, 611 F. App'x at 769.

At issue here is Petitioner's conviction under § 924(j) for Murder Resulting from Use of a Firearm During and in Relation to a Crime of Violence. Petitioner's conviction under § 924(j) is only valid if it is predicated on a "crime of violence." The controlling federal statute defines "crime of violence" in two alternative ways: (A) through the § 924(c)(3)(A) "force clause," requiring that the predicate offense categorically includes the "use, attempted use, or threatened use of physical force" as an element of the offense; or (B) through the § 924(c)(3)(B) "residual clause," requiring that the predicate offense "by its nature, involves a substantial risk that physical force" may be used during the offense. 18 U.S.C. § 924(c)(3). Subsection (A) is the force clause, and subsection (B) is the residual clause. Pursuant to the recent Davis ruling, concluding that the § 924(c)(3)(B) residual clause is unconstitutionally vague, Petitioner's § 2255 motion can only succeed if he demonstrates that the predicate crime underlying his § 924(j) conviction is not a "crime of violence" under the § 924(c)(3)(A) force clause.

B. ANALYSIS

The predicate offense—Assault with a Dangerous Weapon in Aid of Racketeering Activity in violation of 18 U.S.C. § 1959(a)(3) —underlying Petitioner's § 924(j) conviction qualifies as a crime of violence within the meaning of the § 924(c)(3)(A) force clause. Because § 1959 omits any definition of "assault," the Court must look to the elements of the predicate offense as it is generically defined. Cousins v. United States, 198 F. Supp. 3d 621, 626 (E.D. Va. 2016). Accordingly, common law assault is the "(1) willful attempt to inflict injury upon the person of another ... or (2) a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm." Kinard v. United States, No. 3:16-cv-539-GCM, 2017 WL 4350983, at *5 (W.D.N.C. Sept. 29, 2017). Although Petitioner contends that this definition could include even the slightest offensive touching by way of a battery-type assault, it is critical to note that § 1959(a)(3) heightens this common law assault definition by additionally requiring the use of a dangerous weapon, that is, an object with the capacity to endanger life or inflict serious bodily harm. See United States v. Sturgis, 48 F.3d 784, 787 (4th Cir. 1995) (defining a "dangerous weapon").

By combining both common law assault and the use of a dangerous weapon, § 1959(a)(3) includes an element of "use, attempted use, or threatened use of physical force," thereby categorically qualifying as a crime of violence pursuant to the § 924(c)(3)(A) force clause. See Cisneros v. United States, No. 3:16-cv-566-RJC, 2019 WL 6048044 (W.D.N.C. Nov. 14, 2019) (Assault with a Dangerous Weapon in Aid of Racketeering under § 1959(a)(3) is a crime of violence under § 924(c)'s force clause); see generally United States v. Mathis, 932 F.3d 242 (4th Cir. 2019) (applying the categorical approach to the commission of § 1959 offenses when defendants committed first-degree murder under Virginia law); Ali v. United States, No. 2:16cv393, 2019 WL 4261111 (E.D. Va. Sept. 5, 2019) (Assault with a Dangerous Weapon with Intent to do Bodily Harm under 18 U.S.C. § 113(a)(3) is a crime of violence under § 924(c)'s force clause).

Based on the following, Petitioner's predicate offense of Assault with a Dangerous Weapon in Aid of Racketeering Activity qualifies as a crime of violence under the § 924(c)(3)(A) force clause, as it combines both the common law definition of "assault" and the use of a dangerous weapon. Given this combination, the predicate offense includes an element of "use, attempted use, or threatened use of physical force," as required by the § 924(c)(3)(A) force clause. Accordingly, such is a proper predicate offense to Petitioner's § 924(j) conviction for Murder Resulting from Use of a Firearm During and in Relation to a Crime of Violence. Therefore, Petitioner's § 924(j) conviction remains valid notwithstanding the impact of Johnson and Davis.

III. CONCLUSION

As set forth above, Petitioner's Second § 2255 Motion is hereby DENIED . ECF No. 179. Furthermore, because Petitioner has failed to demonstrate "a substantial showing of the denial of a constitutional right," the Court shall not issue a certificate of appealability pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ; 28 U.S.C. § 2253(c).

The Clerk is DIRECTED to forward a copy of this Order to the Petitioner and to all Counsel of Record.

IT IS SO ORDERED.