United States District Court, E.D. North Carolina, Southern Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
cause comes before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. [DE 36]. The government has moved to dismiss the
petition, [DE 40], petitioner has responded, [DE 43], and the
matter is ripe for disposition. For the reasons discussed
below, the government's motion to dismiss is granted and
petitioner's motion is dismissed.
November 14, 2013, petitioner pleaded guilty, pursuant to a
plea agreement, to a unlawfully possessing a firearm as a
convicted felon, in violation of 18 U.S.C. §§
922(g)(1) and 924. [DE 18-19, 31]. On March 12, 2014, the
Court sentenced petitioner to 210 months' imprisonment.
[DE. 23-24, 30]. Petitioner appealed his judgment, [DE 26],
and the Fourth Circuit rejected his argument that the Court
erroneously sentenced him as an armed career criminal in an
unpublished decision issued October 10, 2014. [DE 32].
1, 2016, petitioner filed the instant motion under §
2255. [DE 36]. Petitioner alleges that his Connecticut
convictions for first-degree, second-degree, and third-degree
robbery are no longer predicate violent felonies for the
enhanced penalties of the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e), after the Supreme Court's
decision in Johnson v. United States, 125
S.Ct. 2551 (2015). [DE 36 at 4].
survive a motion to dismiss pursuant to Rule 12(b)(6),
[petitioner's] '[f]actual allegations must be enough
to raise a right to relief above the speculative level, '
thereby 'nudg[ing] their claims across the line from
conceivable to plausible.'" Aziz v. Alcolac
Inc., 658 F.3d 388, 391 (4th Cir. 2011) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). "Under § 2255(b), [u]nless the motion and
files and records of the case conclusively show that the
prisoner is entitled to no relief, the court must grant a
prompt hearing to determine the issues and make findings of
fact and conclusions of law with respect thereto."
United States v. Thomas, 627 F.3d 534, 539 (4th Cir.
2010) (internal quotation omitted). However, "vague and
conclusory allegations contained in a § 2255 petition
may be disposed of without further investigation by the
District Court." United States v. Dyess, 730
F.3d 354, 359 (4th Cir. 2013) (quoting United States v.
Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).
ACCA provides for enhanced punishments for those offenders
who have three prior convictions for violent felonies or
serious drug offenses. 18 U.S.C. § 924(e)(1). A violent
felony is defined by the statute as any crime punishable by
more than one year imprisonment that
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another;
18 U.S.C. § 924(e)(2)(B). In Johnson, the
Supreme Court addressed the constitutionality of the residual
clause of ACCA's violent felony definition, which defines
a violent felony to include one which "otherwise
involves that presents a serious potential risk of physical
injury to another." 135 S.Ct. 2557. The Court held that
the residual clause is unconstitutionally vague and that to
increase a defendant's sentence under that clause denies
the defendant due process of law. Id. at 2557. In
Welch v. United States, the Supreme Court held that
Johnson announced a substantive rule that applies
retroactively on collateral review. 136 S.Ct. 1257 (2016).
residual clause has been held to be unconstitutional, only
those convictions which satisfy one of the two remaining
provisions of the definition of violent felony--the force
clause ("has as an element the use, attempted use, or
threatened use of physical force against the person of
another") or the enumerated clause ("is burglary,
arson, or extortion, involves use of explosives")-remain
proper ACCA predicates. "[I]n the context of a statutory
definition of 'violent felony, ' the phrase
'physical force' means violent force-that
is, force capable of causing physical pain or injury to
another person." Johnson v. United States, 559
U.S. 133, 140 (2010) (emphasis in original). This definition
requires "a higher degree of intent than negligent or
merely accidental conduct." Leocal v. Ashcroft,
543 U.S. 1, 2 (2004).
determine whether a prior conviction qualifies as a violent
felony under ACCA, a court applies the categorical approach,
looking only to the statutory definition of the offense and
not considering the particular facts underlying the
convictions. Taylor v. United States, 495 U.S. 575,
600 (1990); Descamps v. United States, 133 S.Ct.
2276, 2281 (2013). The prior conviction may operate as a
predicate if it is defined more narrowly than, or has the
same elements as, the generic federal crime. Id. at
2283. Thus, under the categorical approach, a prior offense
can only qualify as a violent felony under ACCA if all of the
criminal conduct covered by a statute- "including the
most innocent conduct"-matches or is narrower than the
violent felony definition. United States v.
Torres-Miguel, 701 F.3d 165, 167 (4th Cir. 2012).
Connecticut, a person is guilty of robbery "when, in the
course of committing a larceny, he uses or threatens the
immediate use of physical force upon another person for the
purpose of: (1) Preventing or overcoming resistance to the
taking of the property or to the retention thereof
immediately after the taking; or (2) Compelling the owner of
such property or another person to deliver up the property or
to engage in other conduct which aids in the commission of
the larceny." Conn. Gen. Stat. § 53a-133.
Connecticut differentiates between third-degree robbery,
which is robbery as defined in § 53a-133, and second-
and first-degree robbery by adding certain aggravating
requirements.See Conn. Gen. Stat. §§
53a-133, -134, -135, -136. Petitioner contends that
Connecticut robbery is no longer a predicate offense ...