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Hernandez v. United States

United States District Court, E.D. North Carolina, Western Division

May 8, 2017

MICHAEL HERNANDEZ, Petitioner
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         This 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.[1] For the reasons that follow, the court denies petitioner's motion to vacate and grants the government's motion to dismiss.

          BACKGROUND

         On 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.

         On 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.[2]

         COURT'S DISCUSSION

          A. Standard of Review

          A 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).

          B. Analysis

         Prior 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.

          C. Certificate of Appealability

         A 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.

         CONCLUSION

         Based 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 ...


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