United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
matter is before the court on petitioner's motion to
vacate, set aside, or correct sentence, made pursuant to 28
U.S.C. § 2255 (DE 39), which challenges petitioner's
career offender sentencing enhancement in light of the
Supreme Court's ruling in Johnson v. United
States, 135 S.Ct. 2551 (2015). Also before the court is
the government's motion to dismiss, made pursuant to
Federal Rule of Civil Procedure 12(b)(6). (DE 45). The issues
raised are ripe for ruling. For the reasons that follow, the
court denies petitioner's motion to vacate and grants the
government's motion to dismiss.
January 20, 2009, petitioner pleaded guilty to possession
with intent to distribute more than 50 grams of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1).
On May 12, 2009, petitioner was sentenced to 327 months'
imprisonment. Petitioner appealed, and the Fourth Circuit
Court of Appeals affirmed the court's judgment. On
December 13, 2010, the Supreme Court denied certiorari.
January 26, 2016, petitioner filed the instant motion to
vacate under 28 U.S.C. § 2255, arguing that pursuant to
Johnson, his North Carolina conviction for second
degree burglary no longer qualifies as a “crime of
violence” for purposes of his career offender status.
In its motion to dismiss, the government argues that
petitioner's § 2255 motion should be dismissed for
two reasons: 1) petitioner's motion is untimely; and 2)
Johnson does not apply retroactively on collateral
review to his guidelines challenge.
Standard of Review
petitioner seeking relief pursuant to 28 U.S.C. § 2255
must show that “the sentence was imposed in violation
of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.” 28
U.S.C. § 2255(a). “Unless the motion and the files
and records of the case conclusively show that the prisoner
is entitled to no relief, the court shall . . . grant a
prompt hearing thereon, determine the issues and make
findings of fact and conclusions of law with respect
thereto.” Id. § 2255(b).
to Johnson, an offense was deemed a “violent
felony” under the Armed Career Criminal Act's
(“ACCA”) so-called “residual clause”
if it was punishable by greater than one year's
imprisonment and “involve[d] conduct that present[ed] a
serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B). In Johnson, the
Supreme Court struck down the residual clause of the ACCA as
unconstitutionally vague. 135 S.Ct. at 2563. In this case,
petitioner relies on Johnson's reasoning to
challenge application of a similar clause found in U.S.S.G.
§ 4B1.2(a) at the time of his sentencing. The Supreme
Court recently held, however, that the Guidelines are not
“amenable to a vagueness challenge.” Beckles
v. United States, 137 S.Ct. 886, 894 (2017). Thus,
petitioner may not rely on Johnson's reasoning
to attack his designation as a career offender. Consequently,
petitioner's claim must be dismissed.
Certificate of Appealability
certificate of appealability may issue only upon a
“substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). The petitioner
must demonstrate that reasonable jurists could debate whether
the issues presented should have been decided differently or
that they are adequate to deserve encouragement to proceed
further. Miller-El v. Cockrell 537 U.S. 322, 336-38
(2003); Slack v. McDaniel 529 U.S. 473, 483-84
(2000). After reviewing the claims presented on collateral
review in light of the applicable standard, the court finds
that a certificate of appealability is not warranted.
on the foregoing, the court DENIES petitioner's motion to
vacate (DE 39) and GRANTS the government's motion to
dismiss (DE 45). The court DENIES a certificate of