United States District Court, E.D. North Carolina, Western Division
C. DEVER III, CHIEF UNITED STATES DISTRICT JUDGE
9, 2016, Kali Eloi Robinson ("Robinson") moved
under 28 U.S.C. § 2255 to vacate, set aside, or correct
his sentence [D.E. 96]. On November 23, 2016, the government
moved to dismiss Robinson's section 225 5 motion [D.E.
100] and filed a memorandum in support [D.E. 101 ]. As
explained below, the court grants the government's motion
to dismiss and dismisses Robinson's section 2255 motion.
18, 2009, pursuant to a plea agreement, Robinson pleaded
guilty to armed bank robbery (counts one and three) and to
brandishing a firearm during and in furtherance of a crime of
violence and aiding and abetting (count four). See [D.E. 46,
47, 83]. On December 9, 2009, at Robinson's sentencing
hearing, the court calculated Robinson's total offense
level to be 26, his criminal history category to be HI, and
his advisory guideline range to be 78 to 97 months'
imprisonment on counts one and three, and a consecutive 84
months' imprisonment on count four. See
Sentencing Tr. [D.E. 84] 6-7. After thoroughly considering
all relevant factors under 18 U.S.C. § 3553(a), the
court sentenced Robinson to 78 months' imprisonment on
counts one and three to run concurrently, and 84 months'
imprisonment on count four to run consecutively. See
appealed. On April 11, 2011, the United States Court of
Appeals for the Fourth Circuit enforced the appellate waiver
in Robinson's plea agreement, affirmed Robinson's
conviction, and dismissed Robinson's appeal concerning
his sentence. See United States v.
Robinson, 422 F.App'x 223 (4th Cir. 2011) (per
9, 2016, Robinson filed his section 2255 motion [D.E. 96]. In
his motion, Robinson makes one claim: that due to Johnson
v. United States. 135 S.Ct. 2551 (2015), the court
should resentence Robinson on count four and order the
84-month sentence to run concurrently with the 78-month
sentence. See [D.E. 96] 3.
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for "failure to state a claim upon which
relief can be granted" tests a claim's legal and
factual sufficiency. See Ashcroft v. Iqbal. 556 U.S.
662, 677-78 (2009); Bell Atl. Corp. v. Twombly. 550
U.S. 544, 555-63, 570 (2007); Coleman v. Md. Court of
Appeals. 626 F.3d 187, 190 (4th Cir. 2010), affd, 566
U.S. 320 (2012); Giarratano v Johnson 521 F.3d 298,
302 (4th Cir. 2008); accord Erickson v. Pardus. 551
U.S. 89, 93-94 (2007) (per curiam). The government may
challenge the legal sufficiency of a section 2255 petition
through a motion to dismiss under Rule 12(b)(6). See Rule 12,
Rules Governing Section 2255 Proceedings; United States
v. Frady. 456 U.S. 152, 166-68 n.15 (1982); United
States v. Reckmeyer, 900 F.2d 257, at *4 (4th Cir. 1990)
(unpublished table decision). In considering a motion to
dismiss, a court need not accept a complaint's legal
conclusions. See, e.g.. Iqbal, 556 U.S. at
678. Similarly, a court "need not accept as true
unwarranted inferences, unreasonable conclusions, or
arguments." Giarratano, 521 F.3d at 302
(quotation omitted): see Iqbal. 556 U.S. at 677-79.
Moreover, a court may take judicial notice of public records
without converting a motion to dismiss into a motion for
summary judgment. See, e.g., Fed.R.Evid. 201;
Tellabs, Inc. v. Makor Issues & Rights. Ltd.,
551 U.S. 308, 322 (2007); Philips v. Pitt Cty. Mem'l
Hosp., 572 F.3d 176, 180 (4th Cir. 2009). In reviewing a
section 2255 motion, the court is not limited to the motion
itself. The court also may consider "the files and
records of the case." 28 U.S.C. § 2255(b); see
United States v. McGill. 11 F.3d 223, 225 (1st Cir.
Robinson's claims under Johnson v. United
States. 135 S.Ct. 2551 (2015), Robinson's plea
agreement contains an appellate waiver. See [D.E. 47] ¶
2(c). In the waiver Robinson agreed
To waive knowingly and expressly the right to appeal whatever
sentence is imposed on any ground, including any appeal
pursuant to 18 U.S.C. § 3742, and further to waive any
right to contest the conviction or the sentence in any
post-conviction proceeding, including any proceeding under 28
U.S.C. § 2255, excepting an appeal or motion based upon
grounds of ineffective assistance of counsel or prosecutorial
misconduct not known to the Defendant at the time of the
Defendant's guilty plea. The foregoing appeal waiver does
not constitute or trigger a waiver by the United States of
any of its rights to appeal provided by law.
Id. In light of Robinson's Rule 11 proceeding,
the appellate waiver is enforceable. See Robinson. 422
F.App'x at 224-25; see also United States v.
Copeland. 707 F.3d 522, 528-30 (4th Cir. 2013);
United States v. Davis. 689 F.3d 349, 354-55 (4th
Cir. 2012) (per curiam); United States v. Blick, 408
F.3d 162, 168 (4th Cir. 2005). Robinson's claim
concerning Johnson falls within the appellate
waiver. Thus, the waiver bars the claim.
Robinson failed to raise this claim on direct appeal. Thus,
the general rule of procedural default bars Robinson from
presenting this claim under section 2255. See, e.g..
Massaro v. United States. 538 U.S. 500, 504
(2003); Bousley v. United States, 523 U.S. 614, 621
(1998); United States v. Fugit, 703 F.3d 248, 253
(4th Cir. 2012); United States v. Sanders. 247 F.3d
139, 144 (4th Cir. 2001). Furthermore, Robinson has not
plausibly alleged "actual innocence" or "cause
and prejudice" resulting from the alleged errors about
which he now complains. See Bouslev. 523 U.S. at
622-24; Coleman v. Thompson. 501 U.S. 722, 753
(1991); United States v. Frady, 456 U.S. 152, 170
(1982); United States v. Pettiford, 612 F.3d 270,
280-85 (4th Cir. 2010); United States v.
Mikalajunas, 186 F.3d 490, 492-95 (4th Cir. 1999).
Accordingly, the claim fails.
Robinson cannot use section 2255 to attack retroactively his
advisory guideline range. See, e.g., United States v.
Foote, 784 F.3d 931, 935-36 (4th Cir. 2015); United
States v. Pregent, 190 F.3d 279, 283-84 (4th Cir. 1999);
see also Whiteside v. United States. 775 F.3d 180,
183-87 (4th Cir. 2014) (en banc); Mikalajunas, 186
F.3d at 495-96. Thus, the claim fails.
to the extent that Robinson argues that armed bank robbery is
not a crime of violence under Johnson, the claim
fails. See, e.g., United States v. McNeal,
818 F.3d 141, 152-57 (4th Cir. 2016). Likewise, the court
lacks discretion to run the 84-month sentence on count four
concurrently with the 78-month sentence on counts one and
three. See 18 U.S.C. § 924(c)(1)(A), (D)(ii).
reviewing the claim presented in Robinson' motion, the
court finds that reasonable jurists would not find the
court's treatment of Robinson's claim debatable or
wrong and that the claim deserves no encouragement to proceed
any further. Accordingly, the court denies a certificate of
appealability. See 28 U.S.C. § 2253(c); Mil ...