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Miller v. United States

United States District Court, E.D. North Carolina, Southern Division

June 27, 2017

GREGORY DONELL MILLER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Louise W. Flanagan States District Judge.

         This 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 dismiss.

         BACKGROUND

         On 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.

         On 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.

         COURT'S DISCUSSION

         A. Standard of Review

         A 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).

         B. Analysis

         1. Motion for counsel

         Petitioner 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.

         2. Motion to Vacate

         In his 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 predicates. (Id.).

         a. Petitioner's Mathis ...


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