United States District Court, E.D. North Carolina, Western Division
C. DEVER III Chief United States District Judge
10, 2016, Tyree Jamez Boddie ("Boddie") moved
pursuant to 28 U.S.C. § 2255 to vacate, set aside, or
correct his 96-month sentence [D.E. 37]. On December 2, 2016,
the government moved to dismiss Boddie's motion [D.E. 44]
and filed a supporting memorandum [D.E. 45]. As explained
below, the court grants the government's motion to
August 26, 2013, Boddie pleaded guilty to being a felon in
possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a). See [D.E. 1, 25, 32];
Presentence Investigation Report [D.E. 22] ("PSR")
¶¶ 1-8. Before sentencing, the United States
Probation Office prepared a PSR. The PSR stated that Boddie
had a total offense level of 27, a criminal history category
V, and an advisory guideline range of 120 months'
imprisonment. See PSR ¶¶ 48-59. Boddie objected to
the PSR and the advisory guideline range. See PSR Addendum;
Transcript of Sentencing Proceedings ("Sentencing
Tr.") [D.E. 31] 5-8.
December 5, 2013, at Boddie's sentencing hearing, the
court sustained one objection, reduced the total offense
level to 21, and calculated the advisory guideline range as
70 to 87 months' imprisonment. See Sentencing Tr. at
25-27; Fed. R. Crim. P. 32(i)(3)(A). After considering the
entire record, the arguments of counsel, and the section 3
553(a) factors, this court varied upward and sentenced Boddie
to 96 months' imprisonment. See Sentencing Tr. 33-38.
appealed. On August 25, 2014, the United States Court of
Appeals for the Fourth Circuit affirmed. See United
States v. Boddie. 582 F.App'x 177, 177-78 (4th Cir.
2014) (per curiam) (unpublished).
Boddie's section 2255 motion, Boddie cites Johnson v.
United States. 135 S.Ct. 2551 (2015), and alleges that
court miscalculated his base offense level under U.S.S.G
§ 2K2.1(a)(4)(A) because he lacked a felony conviction
for a crime of violence or a controlled substance offense.
See [D.E. 37] 5-6, 10; cf PSR ¶¶ 12, 48. Thus,
Bodie wants to be resentenced. The government disagrees with
Boddie and has moved to dismiss Boddie's motion for
failure to state a claim upon which relief can be granted.
See [D.E. 44, 45].
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 a complaint's legal and
factual sufficiency. See Ashcroft v. Iqbal. 556 U.S.
662, 677-78 (2009); Bell Atl. 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), affd, 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 Ctv. 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 (1st Cir. 1993). Likewise, a
court may rely on its own familiarity with the case.
See. e.g., Blackledge 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 Boddie. First, Johnson does not apply
retroactively to permit collateral claims challenging
sentences enhanced under the then-existing residual clause in
U.S.S.G. § 4B1.2(a)(2). See Beckles v. United
States. 137 S.Ct. 886, 891-92 (2017); United States
v. Mack. No. 15-4684, 2017 WL 1544953, at *3 (4th Cir.
May 1, 2017); United States v. Lee. No. 15-6099;
2017 WL 1476145, at *2 (4th Cir. Apr. 25, 2017). Second, and
in any event, Boddie's attempted first degree burglary
conviction remains a crime of violence even after
Johnson. See Mack, 2017 WL 1544953, at *3;
Paris v. United States. 191F.Supp.3d 559, 561-62
(E.D. Va. 2016). Thus, the court properly calculated
Boddie's base offense level, and his claim fails.
reviewing the claim presented in Boddie's motion, the
court finds that reasonable jurists would not find the
court's treatment of Boddie'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.
44], DISMISSES Boddie's section 2255 motion [D.E. 37],