United States District Court, E.D. North Carolina, Western 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 21]. The government has moved to dismiss the
petition, [DE 26], petitioner has responded, [DE 30], 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.
was named in a one-count criminal information on January 26,
2006, charging him with conspiracy to distribute and possess
with intent to distribute more than 5 kilograms of cocaine.
[DE 1]. Petitioner pleaded guilty to the criminal information
pursuant to a plea agreement. [DE 9, 10]. The Presentence
Investigation Report (PSR) identified petitioner as a career
offender, resulting in an advisory guidelines range of 262 to
327 months' imprisonment. [PSR at 10, ¶¶ 51
& 56]. The government filed a motion for downward
departure based on substantial assistance [DE 14], and on
July 11, 2006, this Court sentenced petitioner to 180
months' imprisonment. [DE 16]. Petitioner did not file a
September 28, 2015, petitioner filed the instant motion under
18 U.S.C. § 2255. [DE 21]. Petitioner argues in his
§ 2255 motion that he is no longer a career offender
under the Federal Sentencing Guidelines due to the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015), which struck the "residual
clause" of the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e)(2)(B)(ii), as well as under the Fourth
Circuit's decision in United States v. Newbold,
791 F.3d 455 (2015). [DE 21-1 at 3-6]. The government
responded, arguing that the motion should be dismissed for
failure to state a claim upon which relief can be granted
under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
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. Twombfy, 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)).
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e),
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).
and in contrast to the ACCA, the Supreme Court has held that
the Federal Sentencing Guidelines, including U.S.S.G. §
4B1.2(a)'s residual clause, are not subject to vagueness
challenges under the Due Process Clause. Beckles v.
United States, 137 S.Ct. 886, 894 (2017) ("Because
they merely guide the district courts' discretion, the
Guidelines are not amenable to a vagueness challenge.").
Moreover, the Fourth Circuit Court of Appeals has recognized
that a challenge to the application of the sentencing
guidelines is not cognizable in a § 2255 proceeding.
United States v. Foote, 784 F.3d 931, 9/31 (4th Cir.
2015), cert, denied 135 S.Ct. 2850 (2015)
("[B]y its terms, § 2255 does not allow for a
court's consideration and correction of every alleged
sentencing error."). A petitioner seeking relief under
§ 2255 must make one of four types of arguments:
 that the sentence was imposed in violation of the
Constitution or laws of the United States, or  that the
court was without jurisdiction to impose such sentence, or
 that the sentence was in excess of the maximum authorized
by law, or  is otherwise subject to collateral attack ....
28 U.S.C. § 2255. If the. alleged sentencing error is
neither constitutional nor jurisdictional, the district court
lacks authority to review it unless it is "a fundamental
defect which inherently results in a complete miscarriage of