Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Deese v. United States

United States District Court, E.D. North Carolina, Southern Division

May 26, 2017

CHARLES RAY DEESE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         This 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 75) and his motion to amend (DE 85). Also before the court is the government's motion to dismiss, made pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 79). The issues raised are ripe for ruling.[1] For the reasons that follow, the court denies petitioner's motion to vacate, denies petitioner's motion to amend, and grants the government's motion to dismiss.

         BACKGROUND

         On September 7, 2010, pursuant to a written plea agreement, petitioner pleaded guilty to the following: possession of firearms and ammunition by a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924 (Count One); and possession with intent to distribute more than five grams of cocaine base (crack) and a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count Two).

         On December 8, 2010, the court sentenced petitioner to 293 months' imprisonment on both Counts One and Two, to be served concurrently. Petitioner appealed his judgment, and the Fourth Circuit Court of Appeals affirmed. See United States v. Deese, 456 F. App'x 298 (2011). Petitioner then filed a petition for certiorari with the United States Supreme Court, but it was denied. See Deese v. United States, 132 S.Ct. 1939 (2012).

         Petitioner filed his first motion to vacate, made pursuant to 28 U.S.C. § 2255, on September 13, 2012. Petitioner's motion was denied. On June 27, 2016, petitioner filed the instant § 2255 motion, arguing that, in light of Johnson v. United States, 135 S.Ct. 2551 (2015): 1) he does not have the predicate convictions to support the career offender enhancement under U.S.S.G. § 4B1.1; and 2) he does not qualify for enhancement under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). On August 15, 2016, the government filed its motion to dismiss, arguing that petitioner's § 2255 motion should be dismissed for failure to state a claim. On September 12, 2016, petitioner filed his motion to amend, seeking to assert claims based on Beckles v. United States, 137 S.Ct. 886 (2017), and Mathis v. United States, 136 S.Ct. 2243 (2016).

         COURT'S DISCUSSION

         A. 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).

         B. Analysis

         1. Motion to Vacate

         a. Petitioner fails to state a claim for relief.

         i. Career offender

         In his first claim, petitioner argues that following the Supreme Court's decision in Johnson, he no longer has the predicate convictions for the career offender enhancement ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.