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 88), which challenges petitioner's
sentence in light of the Supreme Court's ruling in
Johnson v. United States, 135 S.Ct. 2551 (2015).
Also before the court is the government's motion to
dismiss (DE 98), made pursuant to Federal Rule of Civil
Procedure 12(b)(6). (DE 98). The issues raised are ripe for
ruling. For the reasons that follow, the court denies
petitioner's motion to vacate and grants the
government's motion to dismiss.
April 12, 2012, petitioner pleaded guilty to the following:
1) conspiracy to distribute and possess with the intent to
distribute a quantity of cocaine, in violation of 21 U.S.C.
§ 846 (Count One); 2) distribution of a quantity of
cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count
Two); 3) distribution of a quantity of cocaine and aiding and
abetting, in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2 (Count Three); 4) using and carrying a
firearm during and in relation to a drug trafficking crime,
in violation of 18 U.S.C. § 924(c) (Count Four); and 5)
distribution of a quantity of cocaine, in violation of 21
U.S.C. § 841(a)(1) (Count Five). On July 18, 2012, this
court sentenced petitioner to a total term of 106 months'
imprisonment. Petitioner did not appeal his judgment.
29, 2016, petitioner filed the instant motion to vacate
pursuant to 28 U.S.C. § 2255. On September 28, 2016, the
government filed its motion to dismiss, arguing that
petitioner fails to state a cognizable claim under
Johnson because the residual clause does not affect
any aspect of his sentence.
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).
sole claim, petitioner argues that in light of
Johnson, his § 924(c) conviction is
unconstitutional. Mot. Vacate (DE 88) at 4. Petitioner
concludes that his § 924(c) conviction should be
vacated, and he should be resentenced. Id. at 13.
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 v.
United States, 136 S.Ct. 1257, 1268 (2016), the Court
held that Johnson applies retroactively to cases on
does not apply to the residual clause contained in 18 U.S.C.
§ 924(c)(3)(B). See United States v. Godard,
No. 4:16-CR-30-FL-1, 2017 WL 280703, at *1 (E.D. N.C. Jan.
20, 2017). In any event, Johnson has no impact on
petitioner's § 924(c) conviction because he was
convicted of violating § 924(c) for committing a drug
trafficking offense, not a crime of violence. See
Indictment (DE 6). For this reason, § 924(c)(3)(B)'s
definition of “crime of violence” does not apply
here. See United States v. Richardson, 653 F.
App'x. 209, 210 n.* (4th Cir. 2016) (finding that
Johnson was inapplicable where the conviction
underlying the § 924(c) conviction was a drug offense
and not a crime of violence). Consequently, petitioner's
claim must fail.
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, 483-84
(2000). After reviewing the claim ...