United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
cause comes before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. [DE 41, 44]. The government has moved to dismiss
the petition, [DE 50], and the matter is ripe for
disposition. For the reasons discussed below, the
government's motion to dismiss is granted and
petitioner's motion is dismissed.
2, 2014, petitioner pleaded guilty, pursuant to a written
plea agreement, to conspiracy to distribute and possession
with intent to distribute a quantity of cocaine exceeding 500
grams, in violation of 21 U.S.C. § 846 (Count One); and
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count
Three). [DE 23]. On August 5, 2014, petitioner was sentenced
to 60 months' imprisonment, consecutive on both counts,
for a total of 120 months' imprisonment. [DE 31].
September 28, 2015, petitioner filed a motion to reduce his
sentence. [DE 37]. The motion was denied. [DE 40]. On July
29, 2016, petitioner filed a motion to vacate under 28 U.S.C.
§ 2255 based upon the Supreme Court's holding in
Johnson v. United States, 135 S.Ct. 2551 (2015). [DE
44]. The government responded, arguing that the motion should
be dismissed for failure to state a claim upon which relief
can be granted under Rule 12(b)(6) of the Federal Rules of
Civil Procedure. [DE 33].
survive a motion to dismiss pursuant to Rule 12(b)(6),
[petitioner's] '[f]actual allegations must be enough
to raise a right to relief above the speculative level, '
thereby 'nudg[ing] their claims across the line from
conceivable to plausible. '"Aziz v. Alcolac
Inc., 658 F.3d 388, 391 (4th Cir. 2011) (quoting
BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
"Under § 2255(b), [u]nless the motion and files and
records of the case conclusively show that the prisoner is
entitled to no relief, the court must grant a prompt hearing
to determine the issues and make findings of fact and
conclusions of law with respect thereto." United
States v. Thomas, 627 F.3d 534, 539 (4th Cir. 2010)
(internal quotation omitted). However, "vague and
conclusory allegations contained in a § 2255 petition
may be disposed of without further investigation by the
District Court." United States v. Dyess, 730
F.3d 354, 359 (4th Cir. 2013) (quoting United States v.
Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e),
provides for enhanced punishments for those offenders who
have three prior convictions for violent felonies or serious
drug offenses. 18 U.S.C. § 924(e)(1). A violent felony
is defined by the statute as any crime punishable by more
than one year imprisonment 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;
18 U.S.C. § 924(e)(2)(B). In Johnson, the
Supreme Court addressed the constitutionality of the residual
clause of ACCA's violent felony definition, which defines
a violent felony to include one which "otherwise
involves that presents a serious potential risk of physical
injury to another." 135 S.Ct. 2557. The Court held that
the residual clause is unconstitutionally vague and that to
increase a defendant's sentence under that clause denies
the defendant due process of law. Id. at 2557. In
Welch v. United States, the Supreme Court held that
Johnson announced a substantive rule that applies
retroactively on collateral review. 136 S.Ct. 1257 (2016).
fails to raise a cognizable claim under Johnson
because the residual clause does not affect any aspect of his
sentence. Petitioner was neither sentenced as an armed career
criminal nor as a career offender. Petitioner did not receive
any guidelines enhancements based upon a crime of violence.
Further, petitioner's 924(c) conviction is based upon
drug trafficking. Therefore, the residual clause does not
affect his sentence and his claim should be dismissed.
these reasons, petitioner cannot state a claim upon which
relief may be granted and his § 2255 petition is