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 26, 28),
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, made pursuant to
Federal Rule of Civil Procedure 12(b)(6). (DE 33). 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.
15, 2013, petitioner pleaded guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a). On November 6, 2013,
petitioner was sentenced to 96 months' imprisonment.
Petitioner did not appeal his judgment.
filed the instant motion to vacate pursuant to 28 U.S.C.
§ 2255 on February 29, 2016, arguing that the crimes
used to calculate his base offense level under U.S.S.G.
§ 2K2.1 were invalidated by Johnson. On June
29, 2016, this case was stayed pending the Supreme
Court's final decision in Beckles v. United
States, 15-8544. Then, on April 7, 2017, the stay was
lifted. Petitioner was given thirty days to show cause why
his § 2255 motion should not be dismissed in light of
Beckles v. United States, 137 S.Ct. 886 (2017).
Petitioner failed to respond, and the time for doing so has
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).
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.
case, petitioner relies on Johnson's reasoning
to challenge the application of a similar clause found in
U.S.S.G. § 4B1.2(a) at the time of his sentencing.
See U.S.S.G. § 2K2.1, cmt. n.1 (stating §
4B1.2(a) provides the definition for “crime of
violence” in § 2K2.1). The Supreme Court recently
held, however, that “the Guidelines are not amenable to
a vagueness challenge.” Beckles, 137 S.Ct. at
894. Thus, petitioner may not rely on Johnson's
reasoning to attack the calculation of his base offense
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, 483-84
(2000). After reviewing the claim ...