United States District Court, E.D. North Carolina, Southern Division
AND MEMORANDUM AND RECOMMENDATION
JAMES E. GATES, Magistrate Judge.
This case comes before the court on the petition (D.E. 36) by pro se petitioner Leroy Williamson ("petitioner") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 ("§ 2255"), petitioner's motion for appointment of counsel included in the petition,  and the government's motion (D.E. 42) to dismiss the petition. The petition and motion to dismiss were referred to the undersigned for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Rules 8(b) and 10 of the Rules Governing Section 2255 Proceedings ("§ 2255 Rules"). ( See D.E. dated 10 Dec. 2013). The motion for appointment of counsel is before the undersigned for disposition pursuant to 28 U.S.C. § 636(b)(1)(A). The petition and motion have been fully briefed. For the reasons stated herein, petitioner's motion for appointment of counsel will be denied, and it will be recommended that the government's motion to dismiss be granted and the petition be dismissed.
On 27 October 2010, petitioner was indicted for one count of possession of firearms by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924. (Indict. (D.E. 1) 1). The indictment included the allegation that petitioner had three previous convictions qualifying as predicate offenses under the Armed Career Criminal Act ("ACCA"), 19 U.S.C. § 924(e). ( Id. 2). In 6 April 2011, petitioner entered a plea of guilty ( see D.E. 25) to the sole charge against him pursuant to a plea agreement (D.E. 27). Petitioner's presentence investigation report ("PSR") (D.E. 29) found him to be an armed career criminal based on his 35 convictions for breaking and entering as well as multiple other felonies. ( See PSR ¶ 92 (citing PSR ¶¶ 13-15, 19-21, 26-28, 31-56, 58-61)). The PSR gave the advisory guideline range as 180 months based on the mandatory minimum term of imprisonment of 15 years under the ACCA, 18 U.S.C. § 924(e)(1). ( See PSR ¶¶ 96, 97). On 11 July 2011, the court entered judgment (D.E. 34), sentencing petitioner to 180 months of imprisonment.
The 14-month period for petitioner to appeal his conviction or sentence to the Fourth Circuit expired on 25 July 2011. See Fed. R. App. P. 4(b)(1)(A)(i). Petitioner filed no appeal.
He filed the instant petition on 30 August 2013. In it, he challenges his classification as an armed career criminal.
APPLICABLE LEGAL PRINCIPLES
I. Standard of Review for § 2255 Petitions
Pursuant to 28 U.S.C. § 2255, a prisoner may seek correction or vacation of a sentence on the grounds that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). "In a § 2255 proceeding, the burden of proof is on petitioner to establish his claim by a preponderance of the evidence." Toribio-Ascencio v. United States, Nos. 7:05-CR-00097-FL, 7:08-CV-211-FL, 2010 WL 4484447, at *1 (E.D. N.C. 25 Oct. 2010) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)). Generally, an evidentiary hearing is required under 28 U.S.C. § 2255 "[u]nless it is clear from the pleadings, files, and records that the prisoner is not entitled to relief." United States v. Rashaad, 249 Fed.Appx. 972, 973 (4th Cir. 2007) (citing Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970)).
There is no constitutional right to counsel in a § 2255 proceeding. See Bell v. Outlaw, No. 5:07-HC-2227-FL, 2008 WL 4510587, at *2 (E.D. N.C. 29 Sept. 2008) ( citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)). Nonetheless, Rule 8(c) of the § 2255 Rules requires the court to appoint counsel for qualified petitioners when it determines that an evidentiary hearing is warranted. Rule 8(c), § 2255 Rules. In addition, the court does have discretion under Rule 8(c) to appoint counsel at other stages of a § 2255 proceeding in accordance with 18 U.S.C. § 3006A. Appointment under § 3006A is permitted when "the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(b).
II. Rule 12(b)(6) Standard of Review
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of claims for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A court may consider a motion to dismiss pursuant to Rule 12(b)(6) challenging the legal sufficiency of a § 2255 petition. See United States v. Reckmeyer, No. 89-7598, 1990 WL 41044, at *4 (4th Cir. 2 Apr. 1990); see also Walker v. True, 399 F.3d 315, 319 (4th Cir. 2005) (vacating district court's order allowing the government's motion to dismiss petitioner's § 2254 petition because the district court did not properly apply the Rule 12(b)(6) standard when it failed to assume all facts pleaded by petitioner to be true and considered material not included in the petition); § 2255 Rule 12 (expressly allowing the application of the Federal Civil Rules where "they are not inconsistent with any statutory provisions or these [§ 2255] rules"); Fed.R.Civ.P. 81(a)(4) (providing that the Federal Rules of Civil Procedure may be applied in § 2255 proceedings where a particular practice has not been specified by § 2255 and where such practice has "previously conformed to the practice in civil actions").
A motion to dismiss pursuant to Rule 12(b)(6) should be granted only if "it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Ordinarily, the complaint need contain simply "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). However, a complaint is insufficient if it offers merely "labels and conclusions, " "a formulaic recitation of the elements of a cause of action, " or "naked assertion[s]" devoid of "further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007) (internal quotation marks omitted)). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). A claim is facially plausible if the plaintiff alleges factual content "that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged" and shows more than "a sheer possibility that a defendant has acted unlawfully." Id.
In analyzing a Rule 12(b)(6) motion, a court must accept as true all well-pleaded allegations of the challenged pleading and view those allegations in the light most favorable to the plaintiff. Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)); see also Lambeth v. Bd. of Comm'rs, 407 F.3d 266, 268 (4th Cir. 2005) (court must accept as true all factual allegations of the ...