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Bryant v. United States

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

April 24, 2017

DEMETRIUS LYDELL BRYANT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         This matter is before the court on petitioner's motion to vacate, set aside, or correct sentence, made pursuant to 28 U.S.C. § 2255 (DE 83), which challenges petitioner's Armed Career Criminal Act (“ACCA”) sentencing enhancement in light of the Supreme Court's holding in Johnson v. United States, 135 S.Ct. 2551 (2015). Also before the court is the government's motion to dismiss, made pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 91). The issues raised are ripe for ruling.[1] For the reasons that follow, the court denies petitioner's motion to vacate and grants the government's motion to dismiss.

         BACKGROUND

         On March 23, 2006, the grand jury returned a three-count superseding indictment, charging petitioner in Count One with possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924. The superseding indictment further charged that petitioner had at least three previous convictions for “violent felonies, ” as that term is defined in 18 U.S.C. § 924(e)(2)(B). On April 10, 2006, petitioner pleaded guilty, pursuant to a written plea agreement, to Count One.

         Prior to sentencing, the United States Probation Office prepared and published a Pre-sentence Investigation Report (“PSR”), which describes in detail petitioner's background, including his criminal history. Based on petitioner's criminal history, the PSR determined that petitioner was an “Armed Career Criminal” and his statutory minimum sentence was 15 years, under the ACCA, 18 U.S.C. § 924(e)(1). (PSR ¶¶ 41, 45). In petitioner's criminal history, the PSR identified the following North Carolina convictions in support of the ACCA enhancement: two convictions for robbery with a dangerous weapon (armed robbery), two convictions for assault with a deadly weapon with intent to kill inflicting serious injury (“ADWIKISI”), one conviction for assault with a deadly weapon with intent to kill (“AWDWIK”), one conviction for common law robbery, and one conviction for escape. (Id. ¶¶ 10-12, 41).

         On July 18, 2006, the court sentenced petitioner to a term of 222 months' imprisonment, adopting the PSR without change. Petitioner did not appeal his judgment.

         Petitioner filed the instant motion to vacate on June 2, 2016, arguing that in light of Johnson, he can no longer be classified as an Armed Career Criminal because he does not have the qualifying predicate convictions. In particular, petitioner argues that his North Carolina convictions for AWDWIK, AWDWIKISI, common law robbery, and escape are no longer valid predicate convictions.

         In its motion to dismiss, the government argues that petitioner has failed to state a claim upon which relief can be granted. The government concedes that petitioner's escape conviction is no longer a violent felony. The government further concedes that in light of United States v. Gardner, 823 F.3d 793, 804 (4th Cir. 2016), petitioner's common law robbery conviction also fails to qualify as a violent felony. The government, however, maintains that petitioner's two convictions for AWDWIKISI, one conviction for AWDWIK, and two convictions for robbery with a dangerous weapon remain violent felonies. The government acknowledges that each of these offenses occurred on the same day but argues they “arose out of a separate and distinct criminal episode.”

         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. Following Johnson, AWDWIK, AWDWIKISI, and robbery with a dangerous weapon are violent felonies.

         A conviction is deemed a “violent felony” under the “force clause” if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). For the reasons previously addressed by this court, AWDWIK and AWDWIKISI qualify as violent felonies under the force clause. See Jackson v. United States, Nos. 5:07-CR-110-FL-1, 5:16-CV-353-FL, 2017 WL 455395, at *4 (E.D. N.C. Feb. 2, 2017) (holding that after Johnson, AWDWIK properly constitutes a predicate offense under the ACCA); Goins v. United States, Nos. 7:10-CR-107-FL-1, 7:16CV-95-FL, 2017 WL 455400, at *5 (E.D. N.C. Feb. 2, 2017) ...


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