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Nixon v. United States

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

July 11, 2017

MUSHULLA SALEEM NIXON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUISE W. FLANAGAN United 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 (DE 144), which challenges petitioner's sentence in light of the Supreme Court's ruling in Johnson v. United States, 135 S.Ct. 2551 (2015), and petitioner's supplement to motion to vacate (DE 159). Also before the court is the government's motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 162). The issues raised are ripe for ruling. For the reasons that follow, the court denies petitioner's motion to vacate, dismisses petitioner's supplement, and grants the government's motion to dismiss.

         BACKGROUND

         On May 5, 2008, petitioner pleaded guilty, pursuant to a written plea agreement, to conspiracy to distribute and possess with the intent to distribute more than 50 grams of cocaine base (crack), in violation of 21 U.S.C. § 846. On October 14, 2008, this court sentenced petitioner to 277 months imprisonment. Petitioner appealed this court's judgment. The Fourth Circuit Court of Appeals denied the government's motion to dismiss in part and affirmed petitioner's conviction. See United States v. Nixon, 352 F. App'x 786 (4th Cir. 2009).

         On August 16, 2010, petitioner filed his first motion to vacate pursuant to 28 U.S.C. § 2255. The motion was subsequently denied. On April 4, 2014, petitioner filed his second § 2255 motion. The motion was dismissed without prejudice to petitioner to seek pre-filing authorization from the Fourth Circuit to file his second or successive § 2255 motion.

         On June 26, 2016, petitioner's appointed counsel filed the instant § 2255 motion, arguing that in light of the Supreme Court's decision in Johnson, he was improperly sentenced as a career offender.[1] On July 25, 2016, petitioner's motion, filed pursuant to 28 U.S.C. §§ 2244(b), 2255(h) for authorization to file a second or successive § 2255 motion, was denied by the Fourth Circuit. On July 26, 2016, the Fourth Circuit filed a corrected order, in which it granted petitioner authorization to file a second or successive § 2255 motion.

         On August 2, 2016, this court stayed the case pending the Supreme Court's final decision in Beckles v. United States, 15-8544. On March 14, 2017, this court lifted the stay and ordered petitioner to show cause why his § 2255 motion should not be dismissed in light of Beckles v. United States, 137 S.Ct. 886 (2017). On March 22, 2017, petitioner's counsel filed a notice of voluntary dismissal.

         On March 27, 2017, petitioner filed a motion to reopen his § 2255 motion. This court concluded that the voluntary dismissal of petitioner's § 2255 motion was the result of petitioner's inability to communicate with his appointed counsel and granted the motion. On April 17, 2017, petitioner filed a supplement to his § 2255 motion, arguing that the career offender enhancement was erroneously applied under United States v. Davis, 720 F.3d 215 (4th Cir. 2013), because several of his prior convictions were consolidated into one sentence under North Carolina law, and therefore, he did not have the two predicate convictions necessary for career offender designation. On May 17, 2017, the government filed its motion to dismiss, arguing that petitioner's § 2255 motion should be dismissed for failure to state a claim upon which relief can be granted. Petitioner responded in opposition on May 25, 2017 and June 2, 2017.

         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 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 to Vacate In the instant § 2255 motion, petitioner argues that, in light of the Supreme Court's decision in Johnson, he was improperly sentenced as a career offender. Mot. Vacate (DE 144) at 4. In particular, petitioner contends that his North Carolina conviction for indecent liberties with a child is not a valid predicate conviction for the career offender enhancement. Id.

         In Johnson, the Supreme Court addressed whether increasing a defendant's sentence based on the residual clause contained in 18 U.S.C. § 924(e)(2)(B)(ii) violates due process. 135 S.Ct. at 2551. The residual clause provided that an offense was a “violent felony” for purposes of § 924(e), if it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The Court in Johnson held that “[i]ncreasing a defendant's sentence under the [residual] clause denies due process of law.” 135 S.Ct. at ...


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