Harding v. United States

          MEMORANDUM

          ELLEN L. HOLLANDER UNITED STATES DISTRICT JUDGE.

         This Memorandum resolves a fourth post-conviction petition filed by Billy Campbell Harding under 28 U.S.C. § 2255. ECF 254 (the “Petition”). Harding, who is self represented, has also filed a Motion to Stay Proceedings, pending the Supreme Court's decision in United States v. Davis, which has since been decided. 139 S.Ct. 2319 (2019). ECF 253 (the “Motion”). The government has moved to dismiss the Petition. ECF 260. And, Harding filed a response. ECF 263.

         No hearing is necessary to resolve the Motion or the Petition. For the reasons that follow, I shall deny the Motion as moot and dismiss the Petition.

         I. Procedural and Factual Background ^[1]

         On August 22, 2002, Harding and others were indicted on a charge of conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371; eight counts of bank robbery or attempted bank robbery, in violation of 18 U.S.C. § 2113; and numerous counts of using or carrying a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). ECF 1. A Superseding Indictment was filed on October 31, 2002 (ECF 18) and a Second Superseding Indictment was filed on January 23, 2003. ECF 33.

         Of relevance here, Harding was charged in Count One with conspiracy to commit bank robbery. In Count Two, he was charged with robbery of a credit union on January 11, 2002, with the use of a dangerous weapon. Count Three charged him with brandishing a firearm in connection with the robbery specified in Count Two. Count Six charged Harding with bank robbery on March 11, 2002, by use of a dangerous weapon. Count Seven charged him with brandishing a firearm during that offense. Count Eight charged a bank robbery on March 29, 2002, through use of a dangerous weapon. Count Nine charged Harding with brandishing a firearm in connection with that robbery. Count Ten charged Harding with attempted bank robbery on May 14, 2002, by use of a dangerous weapon. And, Count Eleven charged brandishing a firearm during that offense. Counts Twelve and Thirteen charged attempted armed robbery of a bank on May 24, 2002. Counts Fourteen and Fifteen charged armed bank robbery on May 28, 2002. Counts Sixteen and Seventeen charged armed bank robbery on June 22, 2002. Counts Eighteen and Nineteen charged armed bank robbery on July 3, 2002. Counts Twenty and Twenty-One charged armed bank robbery on July 15, 2002. Counts Twenty-Two and Twenty-Three charged an armed bank robbery on July 29, 2002.

         Harding proceeded to trial before the Honorable William D. Quarles, Jr. and a jury, beginning on June 11, 2003. See Docket. Following a six-day trial, the jury convicted Harding of conspiracy to commit bank robbery, five bank robberies or attempted bank robberies, and four counts of using or carrying a firearm in relation to a crime of violence, i.e. Counts One, Two, Three, Six, Seven, Twelve, Thirteen, Sixteen, Seventeen, and Twenty-Two. The jury found Harding not guilty of the remaining three bank robberies or attempted bank robberies, as well as two gun offenses (Counts Eight, Nine, Ten, Eleven, Twenty).

         A judgment of conviction was entered on September 2, 2003. ECF 110. The Court sentenced Harding to a total sentence of incarceration of ninety-six years. Id.

         Thereafter, Harding appealed to the Fourth Circuit. ECF 111. The Fourth Circuit affirmed, in an opinion issued on July 1, 2004. ECF 130. The Mandate issued on July 23, 2004. ECF 131.

         On October 3, 2005, Harding filed his first Motion to Vacate under 28 U.S.C. § 2255. ECF 145. Judge Quarles denied the petition on January 31, 2006. ECF 152. Harding moved for a Certificate of Appealability on March 9, 2006 (ECF 159), which was denied by Judge Quarles on March 15, 2006. ECF 162. Harding appealed the denial of the Certificate of Appealability on or about March 29, 2006. See Docket. On July 27, 2006, the Fourth Circuit affirmed the district court's denial of the Certificate of Appealability and dismissed Harding's appeal of the denial of the Motion to Vacate. ECF 169. The Mandate issued on September 19, 2006. ECF 171.

         On March 20, 2009, Harding filed a second Motion to Vacate under 28 U.S.C. § 2255. ECF 188. The second Motion to Vacate was dismissed on March 31, 2009, for lack of jurisdiction, because Harding had not obtained the necessary pre-filing authorization from the Court of Appeals, as required for a successive § 2255 petition. ECF 189; ECF 193-1. The court directed the Clerk to provide Harding with an information packet for requesting the pre-filing authorization for a successive motion to vacate. Id. The Fourth Circuit affirmed the district court's ruling on July 30, 2009. ECF 194. The Mandate issued on September 21, 2009. ECF 195.

         On September 22, 2014, Harding filed a third motion to vacate under 28 U.S.S. § 2255. ECF 218. On February 8, 2016, Judge J. Frederick Motz, to whom the case was then assigned (see Docket, January 29, 2016), dismissed the motion for lack of jurisdiction, because Harding had again failed to obtain pre-filing authorization from the Fourth Circuit for the successive petition. ECF 231.

         The Federal Public Defender was appointed to represent Harding on March 28, 2016, in light of Johnson v. United States, 135 S.Ct. 2551 (2015). ECF 234. However, the Federal Public Defender subsequently sought to withdraw (ECF 238-1), and that request was granted on June 8, 2016. ECF 238. Thereafter, on June 30, 2016, the Fourth Circuit denied Harding's Certificate of Appealability. ECF 240.

         Harding filed his fourth Petition on April 12, 2019, again without pre-filing authorization from the Fourth Circuit. ECF 254. Harding claims that the rulings of the Supreme Court in Johnson v. United States, 135 S.Ct. 2551 (2015); Sessions v. Dimaya, 138 S.Ct. 1204 (2018); and United States v. Davis, 139 S.Ct. 2319 (2019), as well as the Fourth Circuit's decision in United States v. Simms, 914 F.3d 229 (4th Cir. 2019) (en banc), render the definition of “crime of violence” contained in 18 U.S.C. § 924(c) unconstitutionally vague. Therefore, he contends that he is entitled to be resentenced. Moreover, he maintains that he “has met the prongs under 28 U.S.C. § 2255(f)(3), which allows this Court to ...