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Covington v. United States

United States District Court, W.D. North Carolina, Charlotte Division

April 24, 2017

DEREK LORENZO COVINGTON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Frank D. Whitney Chief United States District Judge.

         THIS MATTER is before the Court upon Petitioner Derek Lorenzo Covington's pro se Motion to Vacate, Set Aside or Correct Sentence, 28 U.S.C. § 2255 (Doc. No. 1) and his Motion for Release of Prisoner in a Habeas Corpus Proceeding (Doc. No. 3). Also before the Court is the Government's Motion to Dismiss. (Doc. No. 7.)

         I. BACKGROUND

         Covington was indicted on November 16, 2011, and charged with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Indict., Doc. No. 1.[1] On June 12, 2012, Covington entered a straight-up plea of guilty. Acceptance and Entry of Plea, Doc No. 14.

         In Covington's presentence report (“PSR”), the probation officer calculated a total offense level of 31 based on a determination that Covington's criminal history, which included 25 convictions for breaking and entering and one conviction for robbery with a dangerous weapon, all in violation of North Carolina law, qualified him as an armed career criminal. PSR ¶¶ 21, 24, 27, 28, 29, 31, 32, 34, 35, 36, 37, Doc. 18. Combined with a criminal-history category of IV, this offense level yielded an advisory Sentencing Guidelines range of between 151 and 188 months in prison. PSR at ¶ 76. The probation officer noted that Covington faced a statutory mandatory minimum term of 180 months in prison based on his classification as an armed career criminal. PSR at ¶ 76. Covington objected to certain of the probation officer's conclusions in the PSR but not to his classification as an armed career criminal. PSR at 20. This Court sentenced Covington to 180 months in prison. Judgment, Doc. No. 21. Judgment was entered on June 24, 2013.

         Covington did not file a direct appeal. He filed the instant Motion to Vacate on June 18, 2016.[2] (Mot. to Vacate, Doc. No. 1.) He asserts that under the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), the predicate offenses used to establish his status as an armed career criminal no longer qualify as violent felonies and his sentence, therefore, must be vacated. (Mot. to Vacate 4-5.)

         The Government filed a Motion to Dismiss, arguing Covington's Johnson claim is procedurally defaulted because he failed to raise the substance of the claim at sentencing or in a direct appeal. The Government also contends that he cannot state a claim under Johnson. (Doc. No. 7.) Covington has filed a Response to the Government's Motion. (Doc. No. 9.)

         II. STANDARD OF REVIEW

         Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the arguments presented can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

         III. DISCUSSION

         The Court agrees that Covington's Motion to Vacate fails to state a claim for relief under Johnson. For the sake of judicial economy, the Court will not also address the procedural default defenses raised by the Government.

         In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), is unconstitutionally vague. 135 S.Ct. at 2558. The Court has made the holding in Johnson retroactive on collateral review. See Welch v. United States, 136 S.Ct. 1257 (2016).

         The ACCA provides for a mandatory minimum sentence of 15 years in prison for a defendant convicted of being a felon in possession of a firearm, 18 U.S.C. § 922(g), if the defendant has at least three prior convictions for serious drug offenses or violent felonies. See § 924(e)(1). “Violent felony” is defined in the ACCA as “any crime punishable by imprisonment for a term exceeding one year” 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.” Id. § 924(e)(2)(B) (emphasis added).

         The italicized closing words of § 924(e)(2)(B) constitute the ACCA's residual clause, which the Johnson Court held is void for vagueness. 135 S.Ct. at 2556, 2558. The Court left intact the remainder of the ACCA's “violent felony” definition, including ...


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