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 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.
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.
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
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).
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 to support the ACCA sentencing
enhancement. Mot. Vacate (DE 39-1) at 1-2.
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.
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. § 924(e)(2)(B)(ii). The Fourth
Circuit Court of Appeals has held that the North Carolina
offense of breaking and entering ...