United States District Court, E.D. North Carolina, Southern Division
MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES, Jr., Magistrate Judge.
This matter comes before the court on the motion of John Lewis Dillahunt, Jr. ("Petitioner") under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence [DE-27] and the Government's motion to dismiss [DE-30]. Petitioner has filed a response in opposition to the Government's motion [DE-31] and a supplemental memorandum in support of his claim [DE-32]. All briefing is now complete, and the motions are ripe for review. The motions were referred to the undersigned and are considered here as a recommendation to the district court. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Crim. P. 59(b)(1). For the reasons stated below, it is recommended that the Government's motion to dismiss [DE-30] be allowed and Petitioner's § 2255 motion [DE-27] be denied.
On May 13, 2004, the grand jury charged Petitioner in a three-count indictment with possession with intent to distribute cocaine, cocaine base (crack), and marijuana in violation of 21 U.S.C. § 841(a)(1), Count One; use and carry of a firearm during and in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A), Count Two; and felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924, Count Three. [DE-1]. On November 8, 2004, Petitioner pleaded guilty, without a plea agreement, to all three counts of the indictment. On February 22, 2005, the court sentenced Petitioner to a term of 260 months' imprisonment (200 months on Count One, 60 months on Count 2 (to run consecutively), and 120 months on Count 3 (to run concurrently)) and five years supervised release. [DE-14]. Petitioner did not appeal his conviction or sentence.
On June 16, 2009, Petitioner, with the assistance of counsel, filed a motion pursuant to 18 U.S.C. § 3582 for a reduction of sentence based on retroactive application of new sentencing guidelines for a crack cocaine offense, but he was denied relief because his offense level was the result of his status as a career offender. [DE-17, 19]. Petitioner appealed the court's order, but the appeal was dismissed for failure to prosecute. [DE-20, -24, -25].
On August 14, 2012, Petitioner, with the assistance of counsel, filed the instant motion to vacate pursuant to § 2255. [DE-27]. Petitioner claims that, in light of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), he was improperly classified as a career offender under United States Sentencing Guidelines ("U.S.S.G.") § 4B1.1 and is actually innocent of Count 3, the felon in possession charge. Id. at 5; Pet'r's Mem. [DE-27-2] at 4-5. Petitioner contends that without the career offender enhancement his guideline range would be 117 to 131 months. Pet'r's Mem. [DE-27-2] at 5.
II. LEGAL STANDARDS
A. Rule 12(b)(6)
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint, not to resolve conflicts of fact or to decide the merits of the action. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). However, the "[f]actual allegations must be enough to raise a right to relief above the speculative level' and have enough facts to state a claim to relief that is plausible on its face.'" Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 616 n.26 (4th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations."). "[A] plaintiff's obligation to provide the grounds' of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Twombly, 550 U.S. at 555 (citation omitted). In considering a motion to dismiss, the court assumes the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 872 (4th Cir. 1989) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (internal quotation marks omitted)). Moreover, a court "need not accept the legal conclusions drawn from the facts" nor "accept as true unwarranted inferences, unreasonable conclusions, or arguments." E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
B. 28 U.S.C. § 2255
After conviction and exhaustion or waiver of any right to appeal, courts and the public can presume that a defendant stands fairly and finally convicted. See United States v. Frady, 456 U.S. 152, 164-65 (1982). However, prisoners in federal custody may attack the validity of their convictions pursuant to 28 U.S.C. § 2255. Section 2255 provides a means for a defendant convicted of a federal offense to collaterally attack a conviction or sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or the laws of the United States; (2) the court was without jurisdiction to impose the 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). "[T]hus § 2255 relief is not limited to constitutional error in a conviction or sentence." United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir. 1999). Where a petition seeks relief from a nonconstitutional error, "the scope of review... is more limited than that of constitutional error; a nonconstitutional error does not provide a basis for collateral attack unless it involves a fundamental defect which inherently results in a complete miscarriage of justice, or is inconsistent with the rudimentary demands of fair procedure." Id. (internal quotation marks and citations omitted). "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. Oct. 25, 2010) (unpublished) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)).
Petitioner's sole claim is that, based on Simmons, he does not qualify for the career offender enhancement and is actually innocent of Count 3, the felon in possession charge. Pet'r's Mot. [DE-27] at 5. Specifically, Petitioner argues that none of the convictions used as predicate offenses in designating him as a career offender can be considered controlled substance felonies in light of Simmons and that he has never been convicted of a felony for which he could have received a term of imprisonment of greater than twelve months. Pet'r's Mem. [DE-27-2] at 4. Thus, Petitioner concludes that he should be resentenced without application of the career offender enhancement and his sentencing guideline range should be 117 to 131 months. Pet'r's Mem. [DE-27-2] at 5. With respect to the procedural posture of his claim, Petitioner argues that his motion is timely or, alternatively, that equitable tolling is appropriate. Id. at 5-9. The Government contends that dismissal is warranted because Petitioner's claim is ...