United States District Court, D. Maryland
L. HOLLANDER UNITED STATES DISTRICT JUDGE.
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.
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.
Procedural and Factual Background 
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.
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.
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).
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.
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.
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.
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.
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.
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.
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 ...