United States District Court, D. New Jersey
E. THOMPSON United States District Judge.
Unique Randolph ("Petitioner") moves to vacate,
correct, or set aside his federal sentence pursuant to 28
U.S.C. § 2255. (ECF No. 1.) Respondent, the United
States of America, opposes the motion. (ECF No. 10.) For the
reasons stated herein, Petitioner's motion is denied, and
no certificate of appealability will issue.
5, 2014, Petitioner pled guilty to one count of knowing and
purposeful robbery under the Hobbs Act, 18 U.S.C. §
1951(a), and one count of knowing use of firearm in
furtherance of a crime of violence and aiding and abetting
the same, 18 U.S.C. § 924(c)(1)(A)(ii), (2).
United States v. Randolph, Crim. No.
13-349, ECF Nos. 66, 68. As part of the plea agreement,
Petitioner and the Government stipulated to certain facts
underlying the charges. (ECF No. 10-1, at 7.) Specifically,
the parties agreed that
a. On or about January 16, 2013, [Petitioner] and a
coconspirator entered the T-Mobile Store in Paramus, New
Jersey, with the intent to physically restrain store
employees and then rob the store of electronic merchandise.
b. Before [Petitioner] entered the T-Mobile Store in Paramus,
New Jersey, it was reasonably foreseeable to [him] that his
coconspirator would possess and brandish a firearm during the
course of the robbery.
c. After entering the T-Mobile Store in Paramus, New Jersey,
[Petitioner] tied up three store employees, one customer, and
a UPS deliveryman, while his coconspirator held the victims
at gunpoint. [Petitioner] and the coconspirator then stole
numerous electronic items from the T-Mobile Store and fled in
a get-away vehicle driven by a third coconspirator.
27, 2015, this Court sentenced Petitioner to a 48-month term
of imprisonment on the robbery charge and an 84-month term on
the use of a firearm during a crime of violence charge, for a
total sentence of 132 months. (ECF No. 10-3, at 3.)
Petitioner did not file a direct appeal.
26, 2015, the United States Supreme Court struck down the
residual clause in the definition of "violent
felony" in the Armed Career Criminal Act
("ACCA") as unconstitutionally vague. Johnson
v. United States, 135 S.Ct. 2551, 2557 (2015). On April
18, 2016, the Supreme Court ruled that Johnson
applies retroactively on collateral review. Welch v.
United States, 136 S.Ct. 1257, 1268 (2016). Petitioner
thereafter filed the instant motion under 28 U.S.C. §
2255 on May 20, 2016, challenging his conviction for use of a
firearm during a crime of violence. (ECF No. 1.) Pursuant to
a standing order issued by Chief Judge Simandle on June 23,
2016, this matter was stayed for a 150-day period.
See Standing Order 16-2, http://www.njd.uscourts.gov
/sites/njd/files/Johnson.pdf. On November 17, 2017, the
Government filed its Answer, arguing that Petitioner's
conviction is not affected by Johnson. (ECF No.
STANDARD OF REVIEW
2255 provides in relevant part that
[a] 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 . . . may move the
court which ...