United States District Court, W.D. North Carolina, Statesville Division
Richard L. Voorhees United States District Judge.
MATTER is before the Court on Petitioner's
Motion to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255,  (Doc. No. 1), on Petitioner's
Supplemental Motion to Vacate, (Doc. Nos. 8, 24, 30, 33), and
on the Government's Responses to the Motion to Vacate,
(Doc. Nos. 13, 29, 34, 38). Petitioner is represented by Ann
L. Hester of the Federal Public Defenders of Western North
Carolina. Through counsel, Petitioner moves this Court to
vacate his career offender sentence on the basis of the
Fourth Circuit's en banc decision in United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011), and he also
contends that he is entitled to sentencing relief under
Johnson v. United States, 135 S.Ct. 2551 (2015).
Finally, Petitioner has also filed a pro se Motion for Leave
to Amend, in which he contends that he is entitled to relief
under Descamps v. United States, 133 S.Ct. 2276
(2013). (Doc. No. 16).
Bon Alexander Stroupe pled guilty, without a plea agreement,
to conspiracy to manufacture and possess with intent to
distribute fifty grams or more of methamphetamine, in
violation of 21 U.S.C. §§ 841(b)(1)(B), 846; and
possession of pseudoephedrine with the intent to manufacture
methamphetamine, in violation of 21 U.S.C. § 841(c).
(Crim. Case No. 5:05-cr-221, Doc. No. 30: Acceptance &
Entry of Guilty Plea). In the presentence report, the
probation officer determined that Petitioner qualified as a
career offender under § 4B1.1 of the sentencing
guidelines based on four prior convictions for breaking or
entering in Burke County, North Carolina. (Id., Doc.
No. 50 at ¶ 23: PSR). Because Petitioner qualified as a
career offender, the probation officer recommended a
guidelines range of 188 to 235 months based on a total
offense level of 31 and a criminal history category of VI.
(Id. at ¶ 72).
adopting the presentence report, this Court sentenced
Petitioner to 181 months in prison, giving Petitioner credit
for the time he served in state court on the instant offense.
(Id., Doc. No. 37: Judgment). This Court entered
judgment on June 30, 2006, and Petitioner appealed.
(Id., Doc. No. 39: Notice of Appeal). The United
States Court of Appeals for the Fourth Circuit affirmed in an
unpublished opinion issued October 22, 2007. (Id.,
Doc. No. 55). Petitioner did not file a petition for a writ
of certiorari with the United States Supreme Court.
four years later, Petitioner filed the instant motion to
vacate his career-offender sentence under § 2255,
contending that his breaking and entering convictions do not
qualify as felonies in light of the Fourth Circuit's en
banc decision in United States v. Simmons, 649 F.3d
237 (4th Cir. 2011). (Civ. Doc. No. 1). Petitioner filed
several amendments to his motion, supplementing his argument
under § 2255. (Civ. Doc. No. 3, 4, 8, 16, 24). In an
order dated December 2, 2013, this Court directed the
Government to respond to Petitioner's Simmons
claim. (Civ. Doc. No. 11). The Government filed a response,
seeking dismissal of Petitioner's Simmons claim
as time-barred and non-cognizable under § 2255. (Civ.
Doc. No. 13). The case was then held in abeyance pending
resolution of Whiteside v. United States, 775 F.3d
180 (4th Cir. 2014). (Doc. No. 15). In August 2015, the stay
was lifted, and the Government was ordered to respond. (Civ.
Doc. No. 23). On August 18, 2015, Petitioner sought to
supplement his motion to vacate to add a claim that his
sentence as a career offender violates due process pursuant
to Johnson v. United States, 135 S.Ct. 2551 (2015).
(Civ. Doc. No. 24).
October 29, 2015, the Government filed a Supplemental
Response, addressing Petitioner's Johnson claim.
(Doc. No. 29). The parties thereafter filed several memoranda
addressing Petitioner's Johnson claim. (Doc.
Nos. 30, 31, 34, 35). On September 26, 2016, the Court
granted Petitioner's motion to stay pending Beckles
v. United States, 137 S.Ct. 886 (2017). (Doc. No. 37).
On March 6, 2017, the Supreme Court held in Beckles
that Johnson does not apply to the federal
sentencing guidelines. In other words, the Beckles
Court held that, the federal sentencing guidelines, including
§ 4B1.2(a)'s residual clause, are not subject to
vagueness challenges under the Fifth Amendment's Due
Process Clause. (Id. at 890). In light of
Beckles, the Government filed an additional
memorandum on May 5, 2017. (Doc. No. 38). This matter is now
ripe for disposition.
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the argument presented by the Petitioner can be
resolved without an evidentiary hearing based on the record
and governing case law. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
Petitioner's Simmons Claim
first contends that he is entitled to relief under
Simmons, in which the Fourth Circuit determined that
a prior conviction under North Carolina law is punishable by
more than one year of imprisonment only if that
defendant's conviction, based on his individual
offense characteristics and criminal history, allowed for
such a sentence. United States v. Simmons, 649 F.3d
237, 244 (4th Cir. 2011). Petitioner contends that because he
did not receive more than one year in prison for any of his
North Carolina breaking or entering convictions, he no longer
has the predicate convictions to qualify as a career
offender. In response, the Government contends that
Petitioner's Simmons claim is untimely and
should therefore be dismissed. For the following reasons, the
Court agrees with the Government that Petitioner's
Simmons claim is time-barred.
6 of 28 U.S.C. § 2255, which applies to initial motions
to vacate, provides generally for a one-year statute of
limitations from the date on which a petitioner's
judgment becomes final. 28 U.S.C. § 2255(f)(1). Here,
Petitioner's judgment became final ninety days after the
Fourth Circuit affirmed this Court's judgment, when
Petitioner's time for filing a petition seeking a writ of
certiorari from the Supreme Court expired. See Clay v.
United States, 537 U.S. 522, 525 (2003).
Petitioner's motion, filed four years later, is therefore
untimely under the one-year statute of limitations.
Petitioner contends, however, that his motion is timely
either because he filed within one year of the new
“fact” of Simmons or, alternatively,
because he is entitled to equitable tolling. Because
Petitioner's motion does not qualify for either
exception, his motion will be dismissed.
2255(f)(4) allows for a one-year time period for filing an
initial § 2255 motion after “the date on which the
facts supporting the claim or claims presented could have
been discovered through the exercise of due diligence.”
“Facts” as used in § 2255(f)(4) refers to an
actual or alleged event or circumstance, not to the date a
petitioner recognizes their legal significance. United
States v. Pollard, 416 F.3d 48, 55 (D.C. Cir. 2005).
Section 2255(f)(4), therefore, may not be used to reopen the
time period for filing an initial § 2255 petition on the
basis of new legal authority; rather “subsequent
interpretations of the law can be the basis of delay in
filing a § 2255 motion only in accordance with §
2255(f)(3).” Sun Bear v. United States, 644
F.3d 700, 702 n.5 (8th Cir. 2011) (en banc) (internal
quotations omitted). Petitioner does not allege that he
recently discovered any new facts pertinent to his ...