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 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. 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.
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).
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).
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.
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).
Motion to Vacate
Petitioner fails to state a claim for relief.
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