United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
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. For the reasons that follow, the court
denies petitioner's motion to vacate and grants the
government's motion to dismiss.
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.
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).
18, 2006, the court sentenced petitioner to a term of 222
months' imprisonment, adopting the PSR without change.
Petitioner did not appeal his judgment.
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.
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.”
Standard of Review
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).
Following Johnson, AWDWIK, AWDWIKISI, and robbery
with a dangerous weapon are violent felonies.
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) ...