United States District Court, E.D. North Carolina, Southern Division
W. Flanagan 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 37, 41).
Also before the court is the government's motion to
dismiss, made pursuant to Federal Rule of Civil Procedure
12(b)(6). (DE 44). The issues raised are ripe for ruling. For
the reasons that follow this court dismisses petitioner's
motion to vacate and grants the government's motion to
August 15, 2013, petitioner pleaded guilty, pursuant to a
written plea agreement, to conspiracy to possess with the
intent to distribute and distribution of a quantity of
heroin, in violation of 21 U.S.C. § 846 and 21 U.S.C.
§ 841 (b)(1)(C). On March 4, 2014, this court sentenced
petitioner to 113 months' imprisonment. Petitioner did
not appeal his judgment.
December 27, 2016, petitioner filed the instant motion to
vacate under 28 U.S.C. § 2255, arguing that in light of
the Supreme Court's decision in Mathis v. United
States, 136 S.Ct. 2243 (2016), he is no longer a career
offender. In its motion to dismiss, the government argues
that petitioner's § 2255 motion should be dismissed
for the following reasons: 1) petitioner's motion is
untimely; 2) Mathis does not apply to
petitioner's case; and 3) petitioner waived his right to
collaterally attack pursuant to 28 U.S.C. § 2255.
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 the 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).
Motion for counsel
has filed a renewed motion to appoint counsel, in which
petitioner argues that he needs counsel to assist with
“any and all future actions surrounding the relief and
re-sentencing.” (DE 47) at 1. There is no
constitutional right to counsel in section 2255 proceedings.
See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)
(“We have never held that prisoners have a
constitutional right to counsel when mounting collateral
attacks upon their convictions[.]”); United States
v. Williamson, 706 F.3d 405, 416 (4th Cir. 2013).
Petitioner has failed to demonstrate circumstances warranting
the appointment of counsel. Consequently, petitioner's
motion for appointment of counsel must be denied.
Motion to Vacate
sole claim, petitioner argues that in light of
Mathis, he is no longer a career offender.
See Mot. Vacate (DE 41) at 5. In particular,
petitioner contends that Mathis requires this court
to vacate his sentence because his North Carolina drug
convictions can no longer serve as career offender
Petitioner's Mathis ...