United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM OF DECISION AND ORDER OF
Cogburn United States District Judge
MATTER is before the Court on petitioner's pro
se Motion to Vacate, Set Aside or Correct Sentence, 28
U.S.C. § 2255 (#1) and respondent's Motion to
Dismiss (#3). After the government filed its Motion to
Dismiss, the Court afforded petitioner an opportunity to
respond (Order (#4)) and petitioner filed a Response (#7).
criminal action, after the Court accepted his plea and a
presentence report was filed, petitioner was sentenced as an
armed career criminal based on his three prior North Carolina
breaking and/or entering convictions, as well as two of his
prior convictions for possession with intent to sell/deliver
cocaine. PSR ¶ 21. The probation officer calculated
Lewis's total offense level as 30, and his criminal
history category as VI, even without application of the armed
career criminal enhancement. PSR ¶ 40. In light of the
statutory mandatory minimum sentence, petitioner's
guideline range was 180 to 210 months of imprisonment. PSR
¶ 86. The Court sentenced petitioner to the mandatory
minimum term of 180 months of imprisonment, petitioner
appealed the denial of his motion to suppress, but the Fourth
Circuit affirmed his conviction. United States v.
Lewis, 466 F. App'x 170 (4th Cir. 2012).
2014, petitioner, through counsel, filed a motion to vacate,
arguing based on the decision in Descamps v. United
States, 133 S.Ct. 2276 (2013), that he should not have
been sentenced as an armed career criminal because North
Carolina breaking or entering was not a violent felony. Doc.
No. 60. That proceeding was held in abeyance pending the
Fourth Circuit's decision in United States v.
Mungro, 754 F.3d 267 (4th Cir.), cert. denied,
135 S.Ct. 734 (2014). Civ. Doc. No. 5 (Case No. 3:14CV329).
After the Fourth Circuit issued its decision, petitioner
voluntarily dismissed his first § 2255 motion.
See Case No. 3:14CV329 (#6). Thus, such petition
does not make this petition a second or successive petition.
United States v. Sosa, 364 F.3d 507, 510 n.2 (4th
Cir. 2004) (holding a § 2255 motion is not second or
successive where it follows a prior § 2255 motion that
was not adjudicated on the merits).
petition, petitioner again seeks to challenge his sentence as
an armed career criminal, this time asserting that his North
Carolina breaking and entering convictions no longer qualify
as crimes of violence under Johnson v. United
States, 135 S.Ct. 2551 (2015). In Johnson v. United
States, 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); see also Beckles v.
United States, No. 15-8544 (U.S. March 6, 2017).
did in his first petition, petitioner again challenges the
use of his prior North Carolina convictions for breaking and
entering as predicate offenses. While petitioner acknowledges
that the appellate court upheld North Carolina breaking and
entering convictions as predicate offenses in
Mungro, he contends that this is no longer good law
and that his convictions for breaking and entering are not
enumerated offenses, do not fall under the force clause, and
cannot qualify under the residual clause which is
unconstitutionally vague. In Mungro, the Fourth
Circuit held that North Carolina breaking and entering
constitutes generic burglary and, therefore, is an enumerated
crime of violence under the ACCA. Contrary to
petitioner's argument, Mungro is still good law
and is binding on this lower court. See United States v.
Jones, 2016 WL 5682559 (4th Cir. 2016) (holding Mungro
forecloses the argument that North Carolina breaking and
entering convictions are not predicate offenses under the
ACCA) (unpublished); Thrasher v. United States,
3:16CV422-RJC, 2016 WL 5478015 (W.D. N.C. Sept. 16, 2016)
(unpublished) (holding North Carolina breaking and entering
“continues to qualify as a violent felony under the
as petitioner's breaking and entering convictions are
enumerated offenses under the ACCA, Johnson does not
apply and the Petition will be dismissed. Finally, the court
notes that petitioner's claim is procedurally defaulted
and he has not shown cause or prejudice to excuse that
procedural default and, further, it is barred by his Plea
Agreement. See Plea Agreement at ¶¶ 17-18.
THEREFORE, ORDERED that the government's Motion to
Dismiss (#3) is GRANTED and petitioner's pro se
Motion to Vacate, Set Aside or Correct Sentence (#1) is
OF CERTIFICATE OF APPEALABILITY
to Rule 11(a) of the Rules Governing Section 2255 Cases, the
Court declines to issue a certificate of appealability as
Petitioner has not made a substantial showing of a denial of
a constitutional right. 28 U.S.C. § 2253(c)(2);
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003)
(in order to satisfy § 2253(c), a petitioner must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong); Slack v. McDaniel529 U.S. 474, 484
(2000) (holding that when relief is denied on procedural
grounds, a petitioner must establish both ...