United States District Court, E.D. North Carolina, Eastern 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, as corrected and amended (DE 47, 57),
which challenges petitioner's sentence 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 10, 2013, petitioner pleaded guilty, pursuant to a
written plea agreement, to distribution of 28 grams or more
of cocaine base (crack), in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B). On August 8, 2014, this
court sentenced petitioner to 132 months' imprisonment.
Petitioner did not appeal his judgment.
March 30, 2016, petitioner filed the instant motion to vacate
pursuant to 28 U.S.C. § 2255, arguing that in light of
the Supreme Court's decision in Johnson, 135
S.Ct. at 2551, he no longer qualifies as a career offender
under U.S.S.G. § 4B1.1. On June 14, 2016,
petitioner's appointed counsel filed an amended motion,
arguing that petitioner's North Carolina convictions for
fleeing or eluding arrest with a motor vehicle and assault on
a law enforcement officer with a firearm are no longer valid
predicate convictions for the career offender enhancement
after the residual clause was voided in
Johnson. Petitioner concludes that he is no longer
a career offender, and his sentence was improperly enhanced.
19, 2016, this court stayed the case pending the Supreme
Court's final decision in Beckles v. United
States, 15-8544. On March 14, 2017, this court lifted
the stay and ordered petitioner to show cause why his §
2255 motion should not be dismissed in light of Beckles
v. United States, 137 S.Ct. 886 (2017). Both petitioner
and the government have responded.
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).
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 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, 137 S.Ct. at 894. Thus, because petitioner
may not rely on Johnson's reasoning to attack
his career offender designation, the instant motion must be
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, 484 (2000).
After reviewing the claims ...