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 124, 125), 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). The issues raised
are ripe for ruling. For the reasons that follow, the court
dismisses petitioner's motion to vacate.
November 6, 2012, pursuant to a written plea agreement,
petitioner pleaded guilty to the following: conspiracy to
manufacture, distribute, dispense and possess with intent to
distribute 500 grams or more of a mixture and substance
containing a detectable amount of methamphetamine and five
kilograms or more of cocaine, in violation of 21 U.S.C.
§§ 846, 841(b)(1)(A) (Count One); and possession of
a firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1)(A) (Count Two).
4, 2013, petitioner was sentenced to life imprisonment on
Count One and 60 months' imprisonment on Count Two, to be
served consecutively. Petitioner appealed his judgment, but
the Fourth Circuit Court of Appeals affirmed. On April 28,
2014, petitioner filed his first motion to vacate pursuant to
28 U.S.C. § 2255. Petitioner subsequently voluntarily
dismissed the motion. Petitioner filed his second § 2255
motion on August 27, 2015. On March 10, 2016, the motion was
26, 2016, petitioner filed the instant § 2255
motion. Petitioner argues that in light of
Johnson, he no longer qualifies as a career
offender. On July 7, 2016, the Fourth Circuit Court of
Appeals denied petitioner's motion filed pursuant to 28
U.S.C. §§ 2244(b), 2255(h) for authorization to
file a second or successive § 2255 motion. On August 16,
2016, this case was stayed pending the Supreme Court's
final decision in Beckles v. United States, 15-8544.
On April 7, 2017, the stay was lifted, and petitioner was
directed to show cause why his motion should not be denied in
light of Beckles v. United States, 137 S.Ct. 886
(2017). Petitioner failed to respond, and the time for doing
so has passed.
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).
not petitioner's first § 2255 motion, so he must
satisfy the requirements set forth in 28 U.S.C. §
2255(h). Section 2255(h) provides as follows:
A second or successive motion must be certified as provided
in section 2244 by a panel of the appropriate court of
appeals to contain-
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was