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Cromratie v. United States

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

April 21, 2017

MAURICE CROMRATIE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

         This matter comes before the court on the following motions: (1) petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (DE 62); (2) the government's motion to dismiss (DE 72); and (3) petitioner's motions to amend (DE 76, 82). The issues raised are ripe for ruling.[1] For the reasons that follow, the court denies petitioner's motion to vacate, grants the government's motion to dismiss, and denies petitioner's motions to amend.

         BACKGROUND

         On March 11, 2013, petitioner pleaded guilty, pursuant to a written plea agreement, to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924. On July 2, 2013, petitioner was sentenced to 96 months' imprisonment. Petitioner appealed his judgment, but the Fourth Circuit Court of Appeals dismissed the appeal.

         On September 1, 2015, petitioner filed the instant motion to vacate under 28 U.S.C. § 2255, arguing that: (1) his attorney provided ineffective assistance of counsel by failing to object to his base offense level and four-level guideline increase pursuant to U.S.S.G. § 2K2.1(a)(4); (2) the court erred by imposing a four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B); (3) there was insufficient evidence in the record to support the four-level guideline increase pursuant to U.S.S.G. § 2K2.1(a)(4); and (4) the court erred by increasing his guideline range for conduct neither admitted by him nor found by a jury. In its motion, the government argues that petitioner's § 2255 motion should be dismissed for failure to state a claim upon which relief can be granted.

         Petitioner also filed two motions to amend. In the first motion, petitioner alleges that his attorney provided ineffective assistance of counsel by failing to object to the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B). In the second motion, petitioner argues that his base offense level was improperly calculated under U.S.S.G. § 2K2.1(a)(4) because his New York third degree robbery conviction is not a “crime of violence” following Johnson v. United States, 135 S.Ct. 2551 (2015).

         COURT'S DISCUSSION

         A. Standard of Review

         A petitioner seeking relief pursuant to 28 U.S.C. § 2255 must show 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(a). “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” Id. § 2255(b).

         B. Analysis

         1. Motion to Vacate

         a. Failure to state a claim of ineffective assistance of counsel

         In his first claim, petitioner alleges that his attorney provided ineffective assistance by failing to object to his base offense level and four-level guideline increase pursuant to U.S.S.G. § 2K2.1(a)(4). Mot. Vacate (DE 62) at 4. Petitioner further alleges that his attorney erred by declining to challenge the court's failure to make specific findings that the firearm facilitated or had the potential of facilitating possession of .31 grams of cocaine base. Id.

         In order to establish ineffective assistance of counsel, a petitioner must satisfy a two-pronged test. See Strickland v. Washington, 466 U.S. 668, 687 (1984). First, a petitioner must show that the representation he received “fell below an objective standard of reasonableness.” Id. at 688. The court must be “highly deferential” of counsel's performance and must make every effort to “eliminate the distorting effects of hindsight.” Id. at 689. Therefore, the court must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. For the second prong, a petitioner must show that he was prejudiced by the ineffective assistance by showing “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

         A defendant is given a base offense of 20 if “the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(4)(A). At the time of petitioner's sentencing, the term “crime of violence” was defined as “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that has as an element the use, attempted use, or threatened use of physical force against the person of another, or . . . otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a). The Commentary to U.S.S.G. § 4B1.2 contained a list of crimes of ...


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