United States District Court, E.D. North Carolina, Southern 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 and the government's motion to dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Although given notice of his right to do so,
petitioner has failed to respond to the government's
motion to dismiss and the matter is ripe for ruling. For the
reasons discussed below, the government's motion is
granted and the petition is dismissed.
(Howard), is currently serving a term of eighty-seven
months' imprisonment after being sentenced by this Court
on September 19, 2012, following his plea of guilty without a
plea agreement to one count of interference with commerce by
robbery and aiding and abetting in violation of 18 U.S.C.
§§ 1951 and 2. Howard did not notice a direct
appeal of his conviction or sentence. On October 17, 2016,
Howard filed the instant motion pursuant to 28 U.S.C. §
2255, asking that the Court set aside his involuntary plea or
re sentence him and release him. Howard, relying on the
Supreme Court's recent opinion in Johnson v. United
States, 135 S.Ct. 2251 (2015), argues that U.S.S.G.
§ 2B3.1(b)(2)(B), which was applied to increase
Howard's advisory guidelines range by six levels, is void
for vagueness and that he received the ineffective assistance
of trial counsel when counsel failed to challenge the
application of U.S.S.G. § 2B3.1(b)(2)(B) to his
sentence. Howard further contends that trial counsel did not
take the appropriate steps to ensure that Howard understood
the nature of the charge against him prior to pleading
guilty. The government has moved to dismiss, arguing that
Howard's motion is untimely and that he is otherwise not
entitled to relief.
motion to vacate under § 2255 must be filed within one
year of the latest of four triggering events: (1) the date
the judgment of conviction becomes final; (2) the date on
which an impediment to making a motion that is created by the
government is removed; (3) the date the Supreme Court
initially recognizes a right that is made retroactively
applicable to cases on collateral review; or (4) the date on
which new facts are discovered through the exercise of due
diligence to support a claim. 28 U.S.C. §
2255(f)(1)-(4). In his motion, Howard relies on the recent
Supreme Court decisions in Johnson, Welch v. United
States, 136 S.Ct. 1257 (2016), and Beckles v. United
States, 137 S.Ct. 886 (2017),  as bases for the timeliness
of his motion.
the cases upon which Howard relies to cause his § 2255
motion to be deemed timely provides Howard with a basis for
relief. In Johnson, the Supreme Court held that the
residual clause of the Armed Career Criminal Act, 18 U.S.C.
§ 924(e), is void for vagueness in violation of due
process. 135 S.Ct. at 2557. Howard's § 2255 motion
relates to U.S.S.G. § 2B3.1(b)(2)(B), which provides for
a six level increase to a defendant's base offense level
for robbery if a firearm was otherwise used. The language in
the Armed Career Criminal Act which was struck down in
Johnson as void for vagueness does not appear in
U.S.S.G. § 2B3.1(b)(2)(B). In Welch, the
Supreme Court held that Johnson is applicable to
cases on collateral review. 136 S.Ct. at 1265. In
Beckles, the Supreme Court recently held that
provisions of the United States Sentencing Guidelines are not
subject to void for vagueness challenges under the due
process clause of the Fifth Amendment. Beckles, 137
S.Ct. at 894.
the cases upon which Howard relies do not provide him with a
basis for relief and thus may not serve to make his petition
timely under § 2255(f)(3). See Outler v. United
States, 485 F.3d 1273, 1280 (11th Cir. 2007) (newly
recognized right asserted to obtain later commencement of
limitations period under § 2255(f)(3) must be
substantive right which forms the basis of the § 2255
motion). Howard's motion was filed more than one year
beyond the date upon which his conviction became final, and
he has come forward with no basis to conclude that his motion
should be deemed timely under any of the remaining provisions
of § 2255(f) or that equitable tolling should apply.
See Holland v. Florida, 560 U.S. 631, 649 (2010).
The government's motion to dismiss the § 2255 motion
as untimely is allowed.
certificate of appealability shall not issue absent "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2) (2000). A petitioner
satisfies this standard by demonstrating that reasonable
jurists would find that an assessment of the constitutional
claims is debatable and that any dispositive procedural
ruling dismissing such claims is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).
As reasonable jurists would not find this Court's
dismissal of petitioner's § 2255 motion debatable, a
certificate of appealability is DENIED.
foregoing reasons, the government's motion to dismiss [DE
155] is GRANTED and petitioner's motion pursuant to 28
U.S.C. § 2255 is DISMISSED. A certificate of
appealability is DENIED.