United States District Court, E.D. North Carolina, Southern 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 76, 78), 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
denies petitioner's motion to vacate.
December 13, 2004, pursuant to a written plea agreement,
petitioner pleaded guilty to the following: distributing
cocaine (Count One); and possession with intent to distribute
more than 50 grams of cocaine base (Count Two). On April 26,
2005, petitioner was sentenced to 208 months'
imprisonment on each count, to run concurrently. Petitioner
did not appeal his judgment.
filed his first motion to vacate pursuant to 28 U.S.C. §
2255 on April 26, 2006. On November 13, 2008,
petitioner's motion was denied. On June 29, 2012,
petitioner filed his second § 2255 motion. On April 17,
2013, the court dismissed the motion.
23, 2016, petitioner filed the instant § 2255
motion. Petitioner argues that in light of
Johnson, he no longer qualifies as a career
offender. On August 2, 2016, this case was stayed pending the
Supreme Court's final decision in Beckles v. United
States, 15-8544. On April 5, 2017, the government filed
a motion to lift stay and response. On April 7, 2017, the
stay was lifted, and petitioner was given twenty-one days to
file a response. Petitioner failed to respond.
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.
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 on the basis that Johnson
invalidated the residual clause. 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 challenge his
designation as a career offender. 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.
on the foregoing, the court DENIES petitioner's motion to
vacate (DE 76, 78). The court also DENIES a certificate of