United States District Court, E.D. North Carolina, Western Division
C. DEVER, III CHIEF UNITED STATES DISTRICT JUDGE
24, 2016, Wallace Thomas Lester ("Lester") moved
pursuant to 28 U.S.C. § 2255 to vacate, set aside, or
correct his 240-month sentence [D.E. 99]. On October 25,
2016, the government moved to dismiss Lester's motion
[D.E. 104] and filed a supporting memorandum [D.E. 105]. On
November 15, 2016, Lester responded [D.E. 106]. As explained
below, the court grants the government's motion to
March 13, 2008, a jury found Lester guilty of possession of a
firearm by a convicted felon in violation of 18 U.S.C.
§§ 922(g)(1) and 924. See [D.E. 1, 42];
Presentence Investigation Report ("PSR")
¶¶ 1-4. Before sentencing, the United States
Probation Office prepared a PSR. The PSR detailed
Lester's extensive criminal history and stated that his
advisory guideline range was 235 to 293 months'
imprisonment based on a criminal history category of VI and a
total offense level of 33. See id. ¶¶
6-33, 67-78. The PSR also stated that Lester was an armed
career criminal on the basis of six prior convictions for
armed robbery. See Id. ¶ 37. After
considering the entire record, the arguments of counsel, and
the section 3553(a) factors, this court sentenced Lester 240
months' imprisonment [D.E. 52]; see Sentencing
Tr. [D.E. 57] 13-18.
appealed. On February 17, 2009, the United States Court of
Appeals for the Fourth Circuit affirmed Lester's
conviction and sentence. See United States v.
Lester. 311 F.App'x 660, 660-61 (4th Cir. 2009) (per
December 23, 2009, this court dismissed Lester's first
2255 motion and denied a certificate of appealability.
See [D.E. 80]. Lester did not appeal. On August 19,
2014, this court dismissed Lester's second section 2255
motion as successive and baseless. See United
States v. Lester v. United States. No. 5:07-CR-169-D,
5:09-CV-293-D, 2014 WL 4105677, at * 1-2 (E.D. N.C. Aug. 19,
2014) (unpublished). On December 23, 2014, the Fourth Circuit
denied a certificate of appealability and dismissed the
appeal. See United States v. Lester, 589
F.App'x 99 (4th Cir. 2014) (per curiam) (unpublished).
April 28, 2016, the Fourth Circuit authorized another section
2255 petition. See In re Wallace Thomas
Lester. No. 15-403 (4th Cir. Apr. 28, 2016). In
Lester's latest section 2255 motion, Lester alleges that
he is no longer an armed career criminal due to Johnson
v. United States. 135 S.Ct.2551 (2015). See
[D.E. 99] 3-7. The government disagrees and has moved to
dismiss Lester's motion for failure to state a claim upon
which relief can be granted. See [D.E. 104, 105].
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for "failure to state a claim upon which
relief can be granted" tests the complaint's legal
and factual sufficiency. See Ashcroft v. Iqbal, 556
U.S. 662, 677-78 (2009); Bell All. Corp. v. Twombly,
550 U.S. 544, 562-63, 570 (2007); Coleman v. Md. Court of
Appeals, 626 F.3d 187, 190 (4th Cir. 2010),
aff'd, 566 U.S. 30 (2012); Giarratano v.
Johnson. 521 F.3d 298, 302 (4th Cir. 2008); accord
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per
curiam). In considering a motion to dismiss, a court need not
accept a complaint's legal conclusions. See, e.g..
Iqbal. 556 U.S. at 678. Similarly, a court "need
not accept as true unwarranted inferences, unreasonable
conclusions, or arguments." Giarratano. 521
F.3d at 302 (quotation omitted); see Iqbal.
556 U.S. at 677-79. Moreover, a court may take judicial
notice of public records without converting a motion to
dismiss into a motion for summary judgment. See,
e.g.. Fed.R.Evid. 201; Tellabs. Inc. v. Makor
Issues & Rights. Ltd., 551 U.S. 308, 322 (2007);
Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176,
180 (4th Cir. 2009). In reviewing a section 2255 motion, the
court is not limited to the motion itself. The court may
consider "the files and records of the case." 28
U.S.C. § 2255(b); see United States v.
McGill. 11 F.3d 223, 225 (1 st Cir. 1993). Likewise, a
court may rely on its own familiarity with the case.
See, e.g.. Blackledee v. Allison, 431 U.S.
63, 74 n.4 (1977); United States v. Dyess, 730 F.3d
354, 359-60 (4th Cir. 2013).
does not help Lester. Lester's six convictions for armed
robbery continue to qualify as violent felonies under 18
U.S.C. § 924(e) even after Johnson. See,
e.g.. United States v. Smith. 638
F.App'x216, 218-19 (4thCir. 2016) (per curiam)
(unpublished); United States v. Wintons, 669
F.App'x 647, 648 (4th Cir. 2016) (per curiam)
(unpublished); PSR ¶¶ 6-11. Thus, Lester's
reviewing the claim presented in Lester's motion, the
court finds that reasonable jurists would not find the
court's treatment of Lester's claim debatable or
wrong, and that the claim does not deserve encouragement to
proceed any further. Accordingly, the court denies a
certificate of appealability. See 28 U.S.C. §
2253(c); Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
the court GRANTS the government's motion to dismiss [D.E.
104], DISMISSES Lester's section 2255 motion [D.E. 99],