United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge
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.)
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.
On June 12, 2012, Covington entered a straight-up plea of
guilty. Acceptance and Entry of Plea, Doc No. 14.
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.
did not file a direct appeal. He filed the instant Motion to
Vacate on June 18, 2016. (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.)
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.)
STANDARD OF REVIEW
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).
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.
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).
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).
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 ...