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Motley v. United States

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

July 17, 2017

CURTIS VARN MOTLEY, JR., 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, as corrected and amended (DE 138, 141), which challenges petitioner's sentence in light of the Supreme Court's ruling in Johnson v. United States, 135 S.Ct. 2551 (2015). The issues raised are ripe for ruling.[1] For the reasons that follow, this court denies petitioner's motion to vacate.

         BACKGROUND

         On November 14, 2007, pursuant to a written plea agreement, petitioner pleaded guilty to the following: conspiracy to distribute and possession with intent to distribute more than 50 grams of cocaine base (crack) and 500 grams of cocaine, in violation of 21 U.S.C. § 846 (Count One); and possession of firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count Five). On May 13, 2008, petitioner was sentenced to 240 months imprisonment on Count One and a consecutive 60 months imprisonment on Count Five, producing a total term of 300 months. Petitioner did not appeal the court's judgment.

         On July 16, 2012, petitioner filed his first motion to vacate pursuant to 28 U.S.C. § 2255. The motion was dismissed on April 23, 2013. 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, petitioner was improperly sentenced as a career offender.[2] On June 27, 2016, the Fourth Circuit Court of Appeals granted authorization for petitioner to file a second or successive motion. That same day, petitioner filed a pro se § 2255 based on Johnson.

         On August 4, 2016, this court stayed the case pending the Supreme Court's final decision in Beckles v. United States, 15-8544. On April 7, 2017, this court lifted the stay, and petitioner was directed to show cause why his § 2255 motion should not be dismissed in light of Beckles v. United States, 137 S.Ct. 886 (2017). Petitioner failed to respond.

         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

         Petitioner argues that, in light of the Supreme Court's decision in Johnson, he was improperly sentenced as a career offender. Mot. Vacate (DE 138) at 4. In particular, petitioner contends that his North Carolina conviction for fleeing to elude arrest with two aggravating factors 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 2557. The Supreme Court later decided Welch v. United States, 136 S.Ct. 1257, 1268 (2016), which held that Johnson applies retroactively to cases on collateral review.

         Petitioner relies on Johnson's reasoning to challenge application of a residual clause found in U.S.S.G. § 4B1.2(a) at the time of his sentencing.[3] The Supreme Court recently held, however, that “the Guidelines are not amenable to a vagueness challenge.” Beckles, 137 S.Ct. at 894. Thus, petitioner may not rely on Johnso ...


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