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Ransom v. United States

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

May 26, 2017

HERVEY ALLEN RANSOM, 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 39). Also before the court is the government's motion to dismiss, made pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 49). 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.

         BACKGROUND

         On March 11, 2015, pursuant to a written plea agreement, petitioner pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1). On September 15, 2015, this court sentenced petitioner to 101 months' imprisonment. Petitioner did not appeal his judgment.

         On May 5, 2016, petitioner filed the instant § 2255 motion, arguing that in light of Johnson v. United States, 135 S.Ct. 2551 (2015): 1) he no longer has the predicate convictions to support the application of the Armed Career Criminal Act (“ACCA”) sentencing enhancement; and 2) his attorney provided ineffective assistance of counsel. On July 25, 2016, the government filed its motion to dismiss, arguing that petitioner's § 2255 motion should be dismissed for failure to state a claim upon which relief can be granted.

         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. Petitioner fails to state a claim for relief.

         a. ACCA enhancement

         In his first claim, petitioner argues that following the Supreme Court's decision in Johnson, he no longer has the predicate convictions to support the ACCA sentencing enhancement. Mot. Vacate (DE 39-1) at 1-2.

         On June 26, 2015, in Johnson, the Supreme Court addressed whether increasing a defendant's sentence based on the residual clause contained in 18 U.S.C. § 924(e)(2)(B)(ii) violates due process. 135 S.Ct. at 2551. The residual clause provided that an offense was a “violent felony” for purposes of § 924(e), if it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The Court in Johnson held that “[i]ncreasing a defendant's sentence under the [residual] clause denies due process of law.” 135 S.Ct. at 2557. On April 18, 2016, the Supreme Court decided Welch v. United States, 136 S.Ct. 1257, 1268 (2016), which held that Johnson applies retroactively to cases on collateral review.

         This claim fails because the Supreme Court did not strike the four enumerated offenses found in 18 U.S.C. § 924(e)(2)(B)(ii). Johnson, 135 S.Ct. at 2563. As is relevant to this case, burglary is an enumerated offense. See 18 U.S.C. ยง 924(e)(2)(B)(ii). The Fourth Circuit Court of Appeals has held that the North Carolina offense of breaking and entering ...


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