United States District Court, W.D. North Carolina, Charlotte Division
Cogburn United States District Judge
MATTER is before the Court upon Petitioner Crispin
Grimaldo's pro se Motion to Vacate, Set Aside or Correct
Sentence, 28 U.S.C. § 2255 (Doc. No. 1). Also before the
Court is the Government's Motion to Dismiss the Motion to
Vacate. (Doc. No. 4.)
was indicted on December 11, 2012, and charged with
conspiracy to possess with intent to distribute cocaine, in
violation of 21 U.S.C. § 846; three counts of possession
with intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a); two counts of dealing in firearms without a
license, in violation of 18 U.S.C. §§ 922(a)(1)(A)
and 924(a)(1)(D); and two counts of using a firearm during
and in relation to a drug-trafficking offense, in violation
of 18 U.S.C. § 924(c). Mot. to Cont., Doc. No.
On June 26, 2013, Grimaldo entered into a plea agreement with
the Government, agreeing to plead guilty to the
drug-trafficking conspiracy offense, one count of dealing in
firearms and a license, and one count of using a firearm
during and in relation to a drug-trafficking offense. Plea
Agreement, Doc. No. 37. The parties agreed that Grimaldo was
responsible for at least 100 grams but less than 200 grams of
cocaine and between 3 and 7 firearms. Id. at ¶
7(c) and (d). Grimaldo agreed to waive his right to challenge
his conviction or sentence in a 28 U.S.C. § 2255 motion,
except on the bases of ineffective assistance of counsel and
prosecutorial misconduct. Id. at ¶¶ 18,
2, 2013, this Court, Magistrate Judge David S. Cayer
presiding, conducted a plea colloquy in accordance with
Federal Rule of Criminal Procedure 11. Entry and Acceptance
of Guilty Plea, Doc. No. 38. During the colloquy, Petitioner
affirmed that he understood the charges to which he was
pleading guilty and the maximum penalties he faced.
Id. at ¶¶ 8 9. Petitioner also affirmed he
was, in fact, guilty of the offenses to which he was pleading
guilty, id. at ¶ 23, and he understood that if
his sentence was more severe than he expected, he would still
be bound by his plea and have no right to withdraw it,
id. at ¶ 16. Additionally, Petitioner affirmed
that he understood that his right to challenge his conviction
and/or sentence in a post-conviction proceeding had been
“expressly waived” in his plea agreement.
Id. at ¶ 27. At the conclusion of the hearing,
the Court accepted Petitioner's guilty plea as knowingly
and voluntarily entered. Id. at 4.
Grimaldo's presentence report (“PSR”), the
probation officer calculated a total offense level of 17
based on the characteristics of Grimaldo's offense and
his acceptance of responsibility. PSR ¶¶ 48, 55,
56, 57, Doc. No. 48. This offense level did not include any
increase based on a prior conviction of a crime of violence.
See id. at ¶ 48. Based on a total offense level
of 17 and a criminal-history category of II, the probation
officer calculated an advisory Sentencing Guidelines range of
imprisonment of between 27 and 33 months for the
selling-firearms-without-a-license offenses. Id. at
¶ 83. Grimaldo faced a mandatory consecutive sentence of
60 months in prison for the § 924(c) firearm offense.
Id. at ¶¶ 81, 82.
did not object to the PSR. Id. at 18. The Court
adopted the PSR and sentenced Grimaldo to a low-end term of
27 months in prison for the drug-trafficking-conspiracy and
selling-firearms-without-a-license offenses and a consecutive
60-month term of imprisonment for the § 924(c) firearm
offense, for a total of 87 months in prison. Judgment, Doc.
did not file a direct appeal. On or about June 21, 2016, he
filed the instant Motion to Vacate, asserting that he is
entitled to relief under Johnson v. United States,
135 S.Ct. 2551 (2015). (Mot. to Vacate, Civ. Case No.
3:16-cv-505-MOC, Doc. No. 1.) The Government filed a Motion
to Dismiss, arguing that Grimaldo explicitly waived his right
to challenge his sentence in a § 2255 post-conviction
proceeding except on the grounds of ineffective assistance of
counsel and prosecutorial misconduct and that this action
does not allege either ground. The Government also argues
that Grimaldo's Johnson claim is procedurally
defaulted because he failed to raise the substance of the
claim at sentencing or in a direct appeal. Finally, the
Government contends that Grimaldo cannot state a claim under
Johnson. (3:16-cv-505-MOC, Doc. No. 4.)
accordance with Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), the Court notified Grimaldo that he had a
right to respond to the Government's Motion and warned
that failure to do so could result in dismissal of his Motion
to Vacate without further notice. (3:16-cv-505-MOC, Doc. No.
5.) Grimaldo responded by letter. (3:16-cv-505-MOC, Doc. No.
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the arguments presented can be resolved without an
evidentiary hearing based on the record and governing case
law. See Raines v. United States, 423 F.2d 526, 529
(4th Cir. 1970).
Court agrees that Grimaldo's Motion to Vacate fails to
state a claim for relief under Johnson. For the sake
of judicial economy, the Court, therefore, will not also
address the waiver and procedural default defenses raised by
Johnson v. United States, the Supreme Court held
that the residual clause of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), is
unconstitutionally vague. 135 S.Ct. at 2558. The Court has
made the holding in Johnson retroactive ...