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Turner v. United States

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

February 2, 2017

LORENZO EARL TURNER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         This matter is before the court on petitioner's motion to vacate, set aside, or correct sentence, made pursuant to 28 U.S.C. § 2255 (DE 34, 53), which challenges petitioner's Armed Career Criminal Act (ACCA) sentencing enhancement in light of Johnson v. United States, 135 S.Ct. 2551 (2015). Also before the court is the government's motion to dismiss, made pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 60). The issues raised are ripe for ruling. For the reasons that follow, the court grants petitioner's motion and denies the government's motion and sets the matter for resentencing.

         BACKGROUND

         On June 21, 2004, petitioner pleaded guilty, pursuant to a written plea agreement, to one count of felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924. Prior to sentencing, the United States Probation Office prepared and published a Presentence Investigation Report (“PSR”), which describes in detail petitioner's background, including his criminal history. Based on petitioner's criminal history, the PSR determined that petitioner was an “armed career criminal” and that his statutory minimum sentence was 15 years, under 18 U.S.C. § 924(e)(1). (DE 64, ¶¶ 57, 61). In petitioner's criminal history, the PSR identified one North Carolina felony conviction for common law robbery, one North Carolina felony conviction for “breaking and entering”; two North Carolina felony convictions for “Assault with a Deadly Weapon With Intent to Kill/Inflicting Serious Injury, ” (hereinafter “AWDWIKISI”); and one North Carolina felony conviction for “Second Degree Murder.” (Id. ¶¶ 13, 15, 16). The court sentenced petitioner on November 18, 2004, to a term of imprisonment of 192 months. (See DE 25). Petitioner appealed, and the Fourth Circuit dismissed the appeal.

         Petitioner filed the instant motion to vacate on October 19, 2015, as amended March 21, 2016, arguing that he can no longer be classified as an Armed Career Criminal because he does not have qualifying predicate convictions following Johnson. The government moves to dismiss on the basis that petitioner qualifies as an Armed Career Criminal due to petitioner's convictions for breaking and entering, assault with a deadly weapon with intent to kill inflicting serious injury, and second degree murder. In response, petitioner contends that the assault and murder convictions do not constitute predicate convictions for purposes of the Armed Career Criminal Act.

         On December 8, 2016, the court held in abeyance the pending motions, pending receipt of Shepard[1] materials that may bear on the issue of whether petitioner's AWDWIKISI convictions could be counted separately as ACCA predicates. The court reasoned that petitioner's AWDWIKISI convictions qualified as violent felonies under the ACCA, but that based on the information in the PSR the court could not determine that they were “committed on occasions different from one another.” 18 U.S.C.A. § 924(e)(1). The government now has supplemented the record with Shepard materials, and petitioner has filed a response.

         COURT'S DISCUSSION

         A. Standard of Review A petitioner seeking relief pursuant to 28 U.S.C. § 2255 must show that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the Court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” § 2255(a). “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” § 2255(b).

         B. Analysis

         1. Breaking and Entering

         Johnson invalidated the “residual clause” contained in the definition of “violent felony” in the ACCA. 135 S.Ct. at 2555-56, 2563 (quoting 18 U.S.C. § 924(e)(2)(B)). Johnson, however, “does not call into question application of the [ACCA] to the four enumerated offenses or the remainder of the [ACCA's] definition of a violent felony.” Id. at 2563. One of those enumerated offenses that constitutes a “violent felony” under the ACCA is “burglary.” 18 U.S.C. § 924(e)(2)(B)(ii). It is well-established in this circuit that the North Carolina offense of breaking and entering qualifies as burglary. See United States v. Mungro, 754 F.3d 267, 272 (4th Cir. 2014). Accordingly, Johnson has no impact on the status of petitioner's breaking and entering conviction as an Armed Career Criminal predicate.

         2. Common law robbery

         The government agrees with petitioner that petitioner's prior conviction for common law robbery no longer constitutes a valid ACCA predicate conviction. See United States v. Welch, 136 S.Ct. 1257 ...


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