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Berry v. United States

United States District Court, E.D. North Carolina, Western Division

August 21, 2014



LOUISE W. FLANAGAN, District Judge.

This matter comes before the court on petitioner's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 ("motion to vacate") (DE 157), and respondent's motion to dismiss the same (DE 163). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), United States Magistrate Judge Robert B. Jones, Jr. entered a memorandum and recommendation ("M&R") (DE 175) wherein it is recommended that the court grant respondent's motion to dismiss. Petitioner timely filed an objection to the M&R and the issues raised are ripe for ruling.[1] For the reasons that follow, the court adopts the recommendation contained in the M&R and grants respondent's motion to dismiss, dismisses with prejudice petitioner's motion to vacate, and denies petitioner's motion.


On November 6, 2008, petitioner pleaded guilty, pursuant to a written plea agreement, to: (1) armed bank robbery and aiding and abetting, in violation of 18 U.S.C. §§ 2113 and 2 ("count one"); (2) use and carry of a firearm during a crime of violence and aiding and abetting, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2 ("count two"); (3) interference with commerce by robbery and aiding and abetting, in violation of 18 U.S.C. §§ 1951 and 2 ("count five"); and (4) being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924 ("count seven"). Petitioner was sentenced to 218 months imprisonment on counts one, five, and seven, and eighty-four (84) months, consecutive, on count two, for a total sentence of 302 months. Petitioner did not appeal, but filed on June 1, 2010, a pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.

On June 29, 2010, petitioner filed an affidavit asserting that he instructed his trial counsel to file a notice of appeal, and counsel did not do so. In its response, while not conceding that petitioner's counsel was ineffective, the government requested the court allow petitioner the limited right to file an out of time notice of appeal (DE 125). Based on this stipulation, the court entered order (DE 133) in which it assumed, without deciding, that petitioner's counsel failed to timely file a notice of appeal as directed by petitioner or failed to advise petitioner of the ability to appeal and was therefore ineffective. The court dismissed the remaining claims in petitioner's motion without prejudice. Petitioner appealed, and the Fourth Circuit dismissed in part and affirmed in part. See United States v. Berry, 446 F.Appx. 661 (4th Cir. 2011).

Petitioner then timely filed the instant pro se motion to vacate pursuant to 28 U.S.C. § 2255, asserting that he received ineffective assistance of trial counsel where counsel did not object to his armed career criminal enhancement. Petitioner subsequently filed a motion to amend his petition (DE 160) seeking to add a claim that trial counsel was ineffective for failing to object to a sentencing enhancement for possession or use of a firearm where petitioner was convicted for possession of that firearm under 18 U.S.C. § 924(c). The government responded to the instant motion to vacate with a motion to dismiss the same. (DE 163). The motion to amend was granted in order entered concurrently with the instant M&R (DE 175), which recommended that petitioner's motion to vacate be denied and respondent's motion to dismiss be granted. Petitioner timely filed objections to the M&R, and, with leave of the court, a supplement to those objections (DE 176, 177).


A. Standard of Review

The district court reviews de novo those portions of a magistrate judge's M&R to which specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review where a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson , 687 F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely filed objection, the court reviews only for "clear error, " and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Acc. Ins. Co. , 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis , 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the record, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

Rule 12 of the Rules Governing Section 2255 Proceedings ("Habeas Rules") states that, "[t]he Federal Rules of Civil Procedure... to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules." A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure determines only whether a claim is stated; "it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party v. Martin , 980 F.2d 943, 952 (4th Cir. 1992). In a section 2255 proceeding the court may consider "the files and records of the case, " as well as the pleadings, in deciding whether to dismiss a petitioner's motion. 28 U.S.C. § 2255(b); see Habeas Rule 4(b), ("If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion....").

A claim is stated under Rule 12(b)(6) if the pleading contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)). In evaluating whether a claim is stated, "[the] court accepts all well-pled facts as true and construes these facts in the light most favorable" to the non-moving party but does not consider "legal conclusions, elements of a cause of action, ... bare assertions devoid of further factual enhancement[, ]... unwarranted inferences, unreasonable conclusions, or arguments." Nemet Chevrolet, Ltd. v., Inc. , 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).

B. Analysis

Petitioner's objections to the M&R, as filed, are somewhat disorganized. A review of the documents filed shows that, in essence, petitioner's objections are threefold. First, petitioner asserts that his trial counsel was ineffective for failing to object to the application of a sentencing enhancement imposed pursuant to the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), where his 1982 attempted burglary conviction was not a proper predicate offense for this ACCA enhancement. Second, petitioner contends trial counsel was ineffective for failing to object to the ACCA enhancement based upon an asserted lack of documentation for his 1986 conviction for attempted robbery. Finally, Petitioner objects to any police reports having been used to establish whether his convictions constitute predicate convictions under the ACCA.

Where these objections revolve around petitioner's trial counsel's alleged ineffectiveness for failure to object to the application of a the ACCA enhancement, a brief discussion of the ACCA and of the law regarding ineffective assistance of ...

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