United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
Reidinger Jr 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 [Civil Case No. 1:16-cv-00129-MR ("CV"), Docs.
1, 3] and on the Government's Motion to Dismiss [CV Doc.
6, 2013, Petitioner pled guilty in this Court to possession
of a firearm by a felon. [Criminal Case No.
1:13-cr-00027-MR-DLH-1 ("CR"), Doc. 13: Acceptance
and Entry of Guilty Plea]. The presentence report
("PSR") noted that Petitioner had two prior
convictions that triggered an enhancement to his base offense
level under U.S.S.G. §2K2.1(a)(2): a 2006 North Carolina
conviction for felony discharge of a weapon into occupied
property and a 2010 North Carolina conviction for felony
habitual misdemeanor assault. [CR Doc. 22 at ¶¶ 17,
40, 46: PSR]. Based on the § 2K2.1 enhancement,
Petitioner faced a Guidelines range of 77 to 96 months.
[Id. at ¶ 121]. On August 7, 2014, this Court
imposed a sentence of 82 months' imprisonment. [CR Doc.
24: Judgment]. Petitioner did not appeal.
26, 2015, in Johnson v. United States, the Supreme
Court held that the residual clause of the Armed Career
Criminal Act ("ACCA")- which covered any offense
that "otherwise involves conduct that presents a serious
potential risk of physical injury to another"-is
"unconstitutionally vague." 135 S.Ct. 2551, 2557
(2015). Based on that holding, the Court concluded that
"imposing an increased sentence under the residual
clause... violates the Constitution's guarantee of due
process." \& at 2563.
around May 9, 2016, Petitioner filed a pro se motion
to vacate, raising a Johnson claim. [CV Doc. 1]. The
Federal Defender was subsequently appointed to represent
Petitioner pursuant to a standing order of this Court. On
June 19, 2016, counsel filed a supplemental motion to vacate
on Petitioner's behalf. [Doc. 3]. In the supplemental
motion to vacate, Petitioner argues that, under
Johnson, his prior convictions for felony discharge
of a weapon into occupied property and for felony habitual
misdemeanor assault no longer qualify as predicates for a
base-offense level enhancement under U.S.S.G. §
2K2.1(a). Petitioner reasons that because the language of
U.S.S.G. § 2K2.1(a) is the same as the language in the
ACCA's residual clause that was struck down in
Johnson, it follows that an enhanced sentence under
U.S.S.G. § 2K2.1(a) is also invalid under
August 8, 2016, the Court placed Petitioner's motion in
abeyance pending the outcome of Beckles v. United
States, S.Ct. No. 15-8455, in which petitioner argued
that his career-offender sentence was erroneously enhanced by
an unconstitutionally vague residual clause of U.S.S.G.
§ 4B1.2. [CVDoc. 5]. On March 6, 2017, the Supreme Court
held in Beckles that "the advisory Guidelines
are not subject to vagueness challenges." 137 S.Ct. 886,
890 (2017). On May 4, 2017, the Government filed the present
motion to dismiss, arguing that Petitioner's
Johnson challenge to his enhanced sentence under
U.S.S.G. § 2K2.1(a) has no validity in light of
Beckles. [CV Doc. 6]. On May 9, 2017, the Court
granted the Federal Defender's motion to withdraw from
representation of Petitioner. [CV Doc. 8]. In the Court's
order, the Court gave Petitioner twenty days to file a
pro se response to the Government's motion to
dismiss. [|dj. Petitioner has not responded and the time to
do so has passed.
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 motion to vacate can be resolved without an
evidentiary hearing based on the record and governing case
law. See Raines v. United States, 423 F.2d526,
noted, Petitioner relies on Johnson in challenging
his enhanced sentence under U.S.S.G. § 2K2.1(a). In
Beckles, however, the Supreme Court held that
"the advisory Guidelines are not subject to vagueness
challenges under the Due Process Clause." 137 S.Ct. at
890. Thus, the holding in Beckles has foreclosed
Petitioner's Johnson claim, and the Court will
therefore deny and dismiss the petition and grant the
Government's motion to dismiss.
Court finds that the Petitioner has not made a substantial
showing of a denial of a constitutional right. See
generally 28 U.S.C. § 2253(c)(2); see also
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in
order to satisfy § 2253(c), a "petitioner must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong") (citing Slack v. McDaniel, 529 U.S.
473, 484-85 (2000)). Petitioner has failed to demonstrate
both that this Court's dispositive procedural rulings are
debatable, and that the Motion to Vacate states a debatable
claim of the denial of a constitutional right. Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000). As a result, the
Court declines to issue a certificate of appealability.
See Rule 11(a), Rules Governing Section 2255
Proceedings for the United States District Courts, 28 U.S.C.
THEREFORE, ORDERED that the Government's Motion to
Dismiss [CV Doc. 6] is GRANTED, and the Petitioner's
Section 2255 Motion to Vacate, Set Aside, or Correct Sentence