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, as corrected and amended (DE 190, 195),
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.
September 28, 2011, petitioner was charged in a four-count
indictment with the following: conspiracy to possess with
intent to distribute and distribution of less than 500 grams
of cocaine, in violation of 21 U.S.C. § 846 (Count One);
possession with intent to distribute a quantity of cocaine,
in violation of 21 U.S.C. § 841(a)(1) (Count Two);
possession of a firearm by an illegal alien, in violation of
18 U.S.C. §§ 922(g)(5), 924 (Count Three); and
using and carrying a firearm during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)
petitioner's arraignment, held on November 6, 2012,
petitioner pleaded not guilty. Following a four-day trial,
the jury returned a verdict of guilty on all four counts. On
June 4, 2013, the court sentenced petitioner to a total term
of 123 months' imprisonment. Petitioner appealed the
court's judgment. On September 4, 2014, the Fourth
Circuit Court of Appeals affirmed. See United States v.
Maldonado, 583 F. App'x 82 (4th Cir. 2014).
Petitioner filed a petition f o r c e r t i o r a r i i n t h
e Supreme Court, but it was denied. Maldonado v United
States, 135 S.Ct. 1008 (2015).
24, 2016, petitioner filed the instant motion to vacate
pursuant to 28 U.S.C. § 2255, arguing that he is
entitled to resentencing in light of the Supreme Court's
decisions in Johnson, 135 S.Ct. at 2551, and
Welch v. United States, 136 S.Ct. 1257 (2016). On
August 31, 2016, the court stayed this case pending the
Supreme Court's final decision in Beckles v. United
States, 15-8544. On April 7, 2017, the 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). Petitioner has
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).
argues he is entitled to resentencing in light of the Supreme
Court's decisions in Johnson, 135 S.Ct. at 2563,
and Welch, 136 S.Ct. at 1257. Mot. Vacate (DE 195)
at 4. Prior 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. In Welch, the Supreme Court held that
Johnson's holding is retroactive on collateral
review. 136 S.Ct. at 1257.
was not sentenced as an armed career criminal pursuant to the
ACCA's residual clause. Moreover, Johnson is
irrelevant to the statutes under which petitioner was
convicted and sentenced. Consequently, petitioner is not
entitled to relief.
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. Cockrell, 537 U.S. 322, 336-38
(2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
After reviewing the claims ...