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Bennerman v. United States

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

April 19, 2017

IRVING BENNERMAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.

         This 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.

         BACKGROUND

         On 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and the Fourth Circuit rejected his argument that the Court erroneously sentenced him as an armed career criminal in an unpublished decision issued October 10, 2014.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].

         On June 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].

         DISCUSSION

         "To 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)).

         The 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).

         As the 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).

         To 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).

         In 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.[1]See Conn. Gen. Stat. ยงยง 53a-133, -134, -135, -136. Petitioner contends that Connecticut robbery is no longer a predicate offense ...


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