United States District Court, E.D. North Carolina, Western Division
LOUISE W. FLANAGAN, District Judge.
This matter comes before the court on petitioner's motions pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. (DE 114, 116, 119). The government filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (DE 124), and petitioner responded. 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 memorandum and recommendation ("M&R") wherein it is recommended that the court dismiss petitioner's motion to vacate. (DE 129). Petitioner timely filed objections to the M&R. In this posture, the issues rased are ripe for ruling. For the reasons stated below, the government's motion is granted.
Indictment was filed against petitioner January 3, 2007, alleging 1) possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924; and 2) possession of marijuana, in violation of 21 U.S.C. § 844(a). Prior to trial, but after the court's deadline for filing pre-trial motions, petitioner filed a motion to suppress and request for evidentiary hearing, along with a motion to reopen the period to file motions and a motion to continue. The court denied petitioner's motions for failure to comply with scheduling deadlines. A jury subsequently convicted petitioner of both counts.
Petitioner was sentenced October 16, 2007. At sentencing, petitioner was found to be an Armed Career Criminal pursuant to the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). The court assessed petitioner's criminal history at Category VI, based on petitioner's Armed Career Criminal status, as well as 18 points assigned to petitioner's criminal history. See U.S.S.G. § 4B1.4, Ch. 5 Pt. A (2007). Petitioner's base offense level was calculated to be 24. Another four points were added to his offense level due to his use of the firearm in question in connection with another felony offense. See U.S.S.G. § 2K2.1(b)(6). However, petitioner's adjusted offense level was set at 33 due to his Armed Career Criminal status. See U.S.S.G. § 4B1.4(b)(3)(B). Based on this criminal history and offense level, the court sentenced petitioner to 235 months imprisonment and five years' supervised release on Count One, and 36 months imprisonment with one year supervised release on Count Two, to run concurrently with Count One.
Petitioner appealed his conviction and sentence on four grounds. Specifically, petitioner asserted that: 1) the court abused its discretion when it denied his right to file a motion to suppress; 2) his trial counsel's failure to timely file the motion constituted ineffective assistance; 3) the court violated petitioner's Confrontation Clause rights by limiting cross-examination of key witnesses, and 4) that he was improperly classified as an Armed Career Criminal. See United States v. Adams, 378 F.App'x 304, 305 (4th Cir. 2010). The Fourth Circuit rejected petitioner's argument on the latter three grounds of appeal, but vacated petitioner's conviction because it found that an evidentiary hearing on his suppression motion should have been granted. Id. The Fourth Circuit ordered a limited remand for an evidentiary hearing on the motion to suppress, and instructed the court to award a new trial if the motion prevailed. However, the Fourth Circuit noted that petitioner's conviction would be reinstated if the motion was denied. Id.
The motion to suppress was referred to United States Magistrate Judge James E. Gates, who on October 8, 2010, issued a memorandum and recommendation that the motion be denied. The court adopted the recommendation on December 27, 2010, and petitioner again appealed. The Fourth Circuit affirmed. United States v. Adams, 462 F.App'x 369 (4th Cir. 2012).
Petitioner originally filed motion to vacate, set aside, or correct his sentence on May 28, 2013 (DE 114). The court noted that petitioner's motion did not substantially follow the form appended to the Rules Governing Section 2255 Proceedings ("Section 2255 Rules"), as prescribed by Rule 2(c) of the Section 2255 Rules and Local Civil Rule 81.2, and directed petitioner to refile his motion. Subsequently, on June 6, 2013, petitioner refiled his motion to vacate (DE 116). Eleven days later, he filed a "corrected" motion to vacate (DE 119). The government filed its motion to dismiss September 10, 2013. Petitioner filed a notice of supplemental authority in support of its petition on April 14, 2014, attaching United States v. Davis, 720 F.3d 215 (4th Cir. 2013). On October 31, 2014, the magistrate judge issued M&R recommending dismissal.
A. Standard of Review
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 Rule 4(b), Rules Governing Section 2255 Proceedings ("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. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).
The court may "designate a magistrate judge to submit... proposed findings of fact and recommendations for the disposition" of a variety of motions. 28 U.S.C. § 636(b)(1)(B). A party may object to the magistrate judge's proposed findings by filing "written objections which... specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objection." Local Civil Rule 72.4(b). 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). 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).
Petitioner's objections raise several challenges to ACCA's constitutionality and its application to his case. In addition, petitioner objects to the magistrate judge's recommendation that prior counsel in his case did not provide ineffective assistance when it failed to timely file a motion to suppress. None of these arguments prevail.
1. Challenges to ACCA
ACCA provides that a defendant convicted of violating 18 U.S.C. § 922(g) who has three previous convictions for offenses constituting a "violent felony" or a "serious drug offense, " or both, committed on occasions different from one another, shall be imprisoned at least 15 years. 18 U.S.C. § 924(e)(1). A "violent felony" includes "any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device" that would be "punishable by imprisonment for [at least one year] if committed by an adult, that... has as an element the use, attempted use, or threatened use of physical force against the person of another." Id., § 924(e)(2)(B). A "serious drug offense" includes "an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance... for which a maximum term of imprisonment of ten years or more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii). At the time of petitioner's sentencing in October 2007 (as remains the case now), these provisions were implemented into the United States Sentencing Guidelines in section 4B1.4. U.S.S.G. § 4B1.4, Background Cmt. (2007).
As noted, petitioner's offense of conviction in this case fell under 18 U.S.C. § 922(g). Petitioner's conviction under state law on two counts of assault with a deadly weapon inflicting injury, committed January 27, 1991, when petitioner was a juvenile, was found to qualify as a "violent felony." Petitioner was also found to have three prior convictions that constituted "serious drug offenses": 1) one count of possession with intent to sell or deliver cocaine, committed July 7, 1993; 2) one count of possession with intent to sell or deliver cocaine, committed April 7, 1994; and 3) one count of possession with intent to sell and deliver heroin, committed May 11, 1994. Because all four convictions were for crimes committed on different occasions, ...