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 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.
10, 2010, pursuant to a written plea agreement, petitioner
pleaded guilty to possession with intent to distribute a
quantity of heroin and a quantity of cocaine base (crack), in
violation of 21 U.S.C. § 841(a)(1). On December 8, 2010,
petitioner was sentenced to 170 months' imprisonment.
Petitioner appealed his judgment. The Fourth Circuit Court of
Appeals affirmed in part and dismissed the appeal in part.
filed his first motion to vacate pursuant to 28 U.S.C. §
2255 on February 7, 2012. The motion was denied. On June 27,
2016, petitioner filed the instant § 2255 motion,
arguing that in light of Johnson, he no longer
qualifies as a career offender. On August 9, 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 given thirty days to
show cause why his § 2255 motion should not be dismissed
in light of Beckles v. United States, 137 S.Ct. 886
(2017). Petitioner failed to respond.
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.
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, 137 S.Ct. at
894. Thus, petitioner's status as a career offender is
not subject to constitutional challenge.
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. Cockrell537 U.S. 322, 336-38
(2003); Slack v. McDaniel529 U.S. 473, 483-84
(2000). After reviewing the claims ...