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, as corrected and amended (DE 80, 82),
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 filed pursuant to
Federal Rule of Civil Procedure 12(b)(6). (DE 91). 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.
28, 2003, petitioner was charged in a single-count indictment
with bank robbery and aiding and abetting, in violation of 18
U.S.C. §§ 2113(a) and 2. At his arraignment, held
on October 21, 2003, petitioner pleaded not guilty to the
indictment. Following a two-day trial, the jury returned a
verdict of guilty. On February 17, 2004, the court sentenced
petitioner to 240 months' imprisonment. Petitioner
appealed, but the Fourth Circuit Court of Appeals affirmed
the court's judgment. See United States v.
Stevens, 158 F. App'x 407 (4th Cir. 2005).
March 21, 2016, petitioner filed the instant motion to vacate
pursuant to 28 U.S.C. § 2255, arguing that in light of
Johnson, he no longer qualifies as a career offender
under U.S.S.G. § 4B1.1. On May 18, 2016, the government
moved to dismiss petitioner's § 2255 motion for
failure to state a claim upon which relief may be granted.
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).
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. The Supreme Court later decided Welch v. United
States, 136 S.Ct. 1257, 1268 (2016), which held that
Johnson applies retroactively to cases on collateral
Supreme Court recently issued its decision in Beckles v.
United States, 137 S.Ct. 886, 890 (2017), which held
that “the advisory [United States Sentencing]
Guidelines are not subject to vagueness challenges under the
Due Process Clause.” In this case, petitioner was
sentenced on February 17, 2004, when the United States
Sentencing Guidelines were mandatory rather than advisory.
The issue petitioner presents in his supplemental memorandum
is whether Beckles necessarily prohibits a Due
Process vagueness challenge to petitioner's
pre-Booker sentence. See id. at 903 n.4
(Sotomayor, J., concurring).
court need not address the pre-Booker issue at this
time because, even if Johnson could strike the
residual clause contained in U.S.S.G. § 4B1.2,
petitioner still has at least two career offender predicates.
In fact, petitioner has several federal controlled substance
offenses. See PSR ¶ 17. Petitioner also has
numerous federal bank robbery offenses. See PSR
¶¶ 19-26. The Fourth Circuit Court of Appeals has
held that bank robbery under 18 U.S.C. § 2113(a)
constitutes a crime of violence under the force clause, 18
U.S.C. § 924(c)(3). See United States v.
McNeal, 818 F.3d 141, 153 (4th Cir. 2016). Accordingly,
even after Johnson, petitioner has two career
offender predicates. While petitioner was not sentenced under
the ACCA, see PSR ¶ 63, the Fourth
Circuit's holding in McNeal arguably makes his
convictions for federal bank robbery crimes of violence under
the force clause for purposes of the career offender
enhancement. See United States v. Carthorne, 726
F.3d 503, 511 n.6 (4th Cir. 2013) (“We rely on
precedents addressing whether an offense is a crime of
violence under the Guidelines ‘interchangeably with
precedents evaluating whether that offense constitutes a
“violent felony'” under the [ACCA], 18 U.S.C.
§ 924(e)(2)(B), as the two terms are defined in a
substantively identical manner.” (quoting United
States v. King, 673 F.3d 274, 279 n.3 (4th Cir. 2012)
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. Cockrell537 U.S. 322, 336-38
(2003); Slack v. McDaniel529 U.S. 473, 484 (2000).
After reviewing the claims ...