United States District Court, E.D. North Carolina, Southern Division
C. DEVER II Chief United States District Judge.
March 30, 2016, Abdullah Asad Mujahid ("Mujahid")
moved pursuant to 28 U.S.C. § 2255 to vacate, set aside,
or correct his 300-month sentence [D.E. 41]. On July 13,
2016, the government moved to dismiss Mujahid's motion
and filed a supporting memorandum [D.E. 45, 46]. Mujahid did
not respond. As explained below, the court grants the
government's motion to dismiss.
March 8, 2010, Mujahid pleaded guilty to possession of a
firearm and ammunition by a convicted felon in violation of
18 U.S.C. §§ 922(g)(1) and 924 (count one) and
possession of a stolen firearm in violation of 18 U.S.C.
§§ 922(j) and 924(a)(2) (count two). See [D.E. 1,
18, 33]; Presentence Investigation Report ("PSR")
¶¶ 1-2. Before sentencing, the United States
Probation Office ("probation") prepared a PSR. The
PSR detailed Mujahid's extensive criminal history and
stated that his advisory guideline range was 188 to 235
months' imprisonment on count one and 120 months'
imprisonment on count two. See Id. ¶¶
58-70. The PSR also stated that Mujahid was an armed career
criminal. See Id. ¶ 34. On July 8, 2010, at
Mujahid's sentencing hearing, the court upwardly departed
under U.S.S.G. § 4A1.3 from a total offense level of 31
to a total offense level of 34. See United States v.
Muiahid, No. 7:09-CR-149-D, 2010 WL 2772492, at *3-5
(E.D. N.C. July 12, 2010) (unpublished). When coupled with
Mujahid's criminal history category VI, Mujahid's
advisory guideline range became 262 to 327 months'
imprisonment on count one and 120 months' imprisonment on
count two. After considering the entire record, the arguments
of counsel, and the section 3553(a) factors, this court
sentenced Mujahid to 3 00 months' imprisonment on count
one and 120 months' imprisonment on count two, to run
concurrently [D.E. 25]; see Sentencing Tr. 21-33.
appealed. On May 4, 2011, the United States Court of Appeals
for the Fourth Circuit affirmed. See United States v.
Muiahid, 431 F.App'x 238 (4th Cir. 2011) (per
Mujahid's section 2255 motion, Mujahid alleges that he is
no longer an armed career criminal due to Jnhnsnn v.
United States. 135 S.Ct. 2551 (2015). See [D.E. 41]
4, 10, 12-13. The government disagrees and has moved to
dismiss Mujahid's motion for failure to state a claim
upon which relief can be granted. See [D.E. 45, 46].
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 the complaint's legal
and factual sufficiency. See Ashcroft v. Iqbal, 556
U.S. 662, 677-78 (2009); Bell All. 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),
affd. 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., Blackledee v. Allison. 431 U.S. 63, 74 n.4 (1977);
United States v. Dyess, 730 F.3d 354, 359-60 (4th
does not help Mujahid. Mujahid's multiple convictions for
breaking and entering continue to qualify as violent felonies
under 18 U.S.C. § 924(e) even after Johnson.
See, e.g.. United States v.
Mungro, 754 F.3d 267, 272 (4th Cir. 2014); PSR
¶¶ 13-15, 17-20, 23-28. Thus, Johnson does
not help Mujahid, and his claim fails.
reviewing the claim presented in Mujahid's motion, the
court finds that reasonable jurists would not find the
court's treatment of Mujahid'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.
45], DISMISSES Mujahid's section 2255 motion [D.E. 41],