Docket – January 4, 2019

4th U.S. Circuit Court of Appeals

United States v. Hammond (P), 4th Cir. (Keenan) from WDNC at Charlotte (Conrad).

New York statutory robbery, irrespective of the degree of the offense, is a crime of violence under U.S. Sentencing Guidelines § 4B1.2(a)(1), because it necessarily involves the “use, attempted use, or threatened use of physical force against the person of another.” The district court did not err in sentencing the appellant as a “career offender.”


U.S. District Court – Virginia Eastern

Holt v. Food Lion Grocery Store of Chester, EDVA at Richmond (Payne).

In this slip-and-fall case, the court has diversity jurisdiction over the controversy, and removal from state court was proper. The parties are citizens of different states, and the amount in controversy exceeds $75,000.

Following removal, Holt argued that the amount in controversy is actually $74,000, submitting an affidavit that she will not seek a greater amount in damages upon remand. But the amount in controversy is governed by the plaintiff’s state-court complaint as it appears at the time of filing the notice of removal, provided that such amount is demanded in good faith. A plaintiff may not deprive the court of diversity jurisdiction simply by amending the complaint to request damages below the jurisdictional amount. The court will not countenance a result that permits a plaintiff to file a large damages claim in state court, wait to see if removal happens, and if it does, to then seek remand based on a lower amount of damages.

Motion to remand denied.

U.S. District Court – Virginia Western

United States v. Hayes (P), WDVA at Roanoke (Conrad).

The petitioner seeks vacatur of his federal conviction under 28 U.S.C. § 2255. Although he previously filed a § 2255 motion that was dismissed as untimely, he contends that the current motion shouldn’t be considered successive because it’s based on newly discovered facts that were not known at the time of the earlier motion.

Courts have distinguished between petitions containing claims, the factual predicate of which came into being after the first habeas petition and those containing claims that were ripe at the conclusion of a first habeas proceeding but weren’t discovered until afterward. Here, the factual predicate underlying the petitioner’s claim — the government’s failure to disclose potentially exculpatory or impeachment evidence — accrued before he filed his first motion, even though he was unaware of this. Consistent with the weight of authority, the court believes that this is precisely the type of situation that § 2255(h)’s successive-motion rule was designed to address.

Thus, the petitioner may pursue his claim only if he obtains authorization from the 4th Circuit. The fact that he is nearing the end of his federal sentence does not allow the court to short-circuit statutory gatekeeping requirements.

Petition dismissed.

Categories: Daily Dockets

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