United States District Court, E.D. North Carolina, Western Division
C. DEVER III Chief United States District Judge
2, 2016, Clifton Terelle McNeill ("McNeill") moved
pursuant to 28 U.S.C. § 2255 to vacate, set aside, or
correct his 300-month sentence [D.E. 58]. On July 13, 2016,
the government moved to dismiss McNeill's motion [D.E.
67] and filed a supporting memorandum [D.E. 68]. On August
23, 2016, McNeill responded in opposition [D.E. 72]. As
explained below, the court grants the government's motion
August 18, 2008, pursuant to a plea agreement [D.E. 26],
McNeill pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924 (count one) and possession with intent to distribute
approximately 3.1 grams of cocaine base (crack) in violation
of 21 U.S.C. § 841(a)(1) (count two). See [D.E. 1, 26];
Presentence Investigation Report ("PSR")
¶¶ 1-5. Before sentencing, the United States
Probation Office prepared a PSR. The PSR included
McNeill's criminal history, including McNeill's
numerous felony convictions involving either a crime of
violence or a controlled substance offense. See PSR
¶¶ 8-11, 16-17, 20. The PSR stated that McNeill was
a career offender and an armed career criminal. See
Id. ¶ 27. The PSR also stated that
McNeill's advisory guideline range was 188 to 235
months' imprisonment based on a total offense level of 31
and a criminal history category VI. See id
¶¶ 43-52, 55. McNeill objected to the PSR and the
advisory guideline range. See PSR Addendum; Transcript of
Sentencing Proceedings ("Sentencing Tr.") [D.E. 44]
January 13, 2009, at McNeill's sentencing hearing, the
court adopted the facts set forth in the PSR and overruled
the objections. See Sentencing Tr. 8-9; Fed. R. Crim. P.
32(i)(3)(A). After upwardly departing under U.S.S.G. §
4A1.3 and considering the entire record, the arguments of
counsel, and the section 3553(a) factors, this court
sentenced McNeill to 300 months' imprisonment on count
one and 240 months' imprisonment on count two to be
served concurrently. See Sentencing Tr. 9-28.
appealed. On March 8, 2010, the United States Court of
Appeals for the Fourth Circuit affirmed. See United
States v. McNeill. 598 F.3d 161 (4th Cir. 2010). On June
6, 2011, the United States Supreme Court affirmed. See
McNeill v. United States. 563 U.S. 816 (2011).
McNeill's section 2255 motion, McNeill alleges that he is
no longer an armed career criminal under Johnson v.
United States. 135 S.Ct. 2551 (2015). See [D.E. 58]
4-12. The government disagrees and has moved to dismiss
McNeill's motion for failure to state a claim upon which
relief can be granted. See [D.E. 67, 68].
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for "failure to state a claim upon which
relief can be granted" tests a complaint's legal and
factual sufficiency. See Ashcroft v. Iqbal. 556 U.S.
662, 677-78 (2009); Bell Atl. Corp. v. Twombly. 550
U.S. 544, 562-63, 570 (2007); Coleman v. Md. Court of
Appeals. 626 F.3d 187, 190 (4th Cir. 2010),
aff'd. 566 U.S. 30 (2012); Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008); accord
Erickson v. Pardus. 551 U.S. 89, 93-94 (2007) (per
curiam). In considering a motion to dismiss, a court need not
accept a complaint's legal conclusions. See,
e.g.. Iqbal. 556 U.S. at 678. Similarly, a
court "need not accept as true unwarranted inferences,
unreasonable conclusions, or arguments."
Giarratano. 521 F.3d at 302 (quotation omitted); see
Iqbal. 556 U.S. at 677-79. Moreover, a court may
take judicial notice of public records without converting a
motion to dismiss into a motion for summary judgment.
See, e.g.. Fed.R.Evid. 201; Tellabs.
Inc. v. Makor Issues & Rights. Ltd.. 551 U.S. 308,
322 (2007); Philips v. Pitt Cty. Mem'l Hosp..
572 F.3d 176, 180 (4th Cir. 2009). In reviewing a section
2255 motion, the court is not limited to the motion itself.
The court may consider "the files and records of the
case." 28 U.S.C. § 2255(b); see United States
v. McGill. 11 F.3d 223, 225 (1st Cir. 1993). Likewise, a
court may rely on its own familiarity with the case.
See. e.g.. Blackledge v. Allison. 431 U.S.
63, 74 n.4 (1977); United States v. Dyess. 730 F.3d
354, 359-60 (4th Cir. 2013).
does not help McNeill. McNeill continues to have numerous
qualifying convictions for serious drug offenses under 18
U.S.C. § 924(e) even after Johnson.
See, e.g. PSR ¶¶ 8-11, 16;
McNeill. 563 U.S. at 821; United States v.
Newbold. 791 F.3d 455, 464 (4th Cir. 2015). Thus,
McNeill remains an armed career criminal.
reviewing the claim presented in McNeill's motion, the
court finds that reasonable jurists would not find the
court's treatment of McNeill's claim debatable or
wrong and that the claim does not deserve encouragement to
proceed any further. Accordingly, the court denies a
certificate of appealability. See 28 U.S.C. § 2253(c);
Miller-El v. Cockrell. 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel. 529 U.S. 473, 484 (2000).
the court GRANTS the government's motion to dismiss [D.E.
67], DISMISSES McNeill's section 2255 motion [D.E. 58],