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 796), which challenges his 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 petitioner's
motion to amend (DE 839), seeking to assert a claim based on
Mathis v. United States, 136 S.Ct. 2243 (2016). The
issues raised are ripe for ruling. For the reasons that follow,
this court denies both petitioner's motion to vacate and
his motion to amend.
January 22, 2009, petitioner pleaded guilty, pursuant to a
written plea agreement, to conspiracy to possess with intent
to distribute and distribution of more than one kilogram of
heroin, more than five kilograms of cocaine, and more than 50
grams of cocaine base (crack), in violation of 21 U.S.C.
§ 846. On September 15, 2009, petitioner was sentenced
to 190 months' imprisonment. Petitioner did not appeal
the court's judgment.
27, 2012, petitioner filed his first motion to vacate
pursuant to 28 U.S.C. § 2255. On August 12, 2015, the
court dismissed petitioner's motion to vacate. On June
21, 2016, petitioner's appointed counsel filed the
instant § 2255 motion, arguing that in light of
Johnson, petitioner was improperly sentenced as a
career offender. On July 28, 2016, this case was stayed
pending the Supreme Court's decision in Beckles v.
United States, 15-8544. Petitioner filed his motion to
amend on March 20, 2017. On April 13, 2017, this court lifted
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).
Petitioner's Johnson claim fails on the merits.
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.
case, petitioner relies on Johnson's reasoning
to challenge his designation as a career offender under
U.S.S.G. § 4B1.1. 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's status as a career offender is not subject
to constitutional challenge.
Petitioner's Mathis claim is untimely.
next motion before the court is a motion to amend, which
raises a claim under Mathis. In Mathis, the
Supreme Court held that when determining whether an offense
qualifies as a predicate under the ACCA, the court takes a
modified categorical approach, which means looking to the
statutory elements of the offense rather than the means of
commission. 136 S.Ct. at ...