United States District Court, E.D. North Carolina, Eastern Division
W. FLANAGAN United 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 (DE 149) and his motion to supplement (DE
160). Also before the court is the government's motion to
dismiss, made pursuant to Federal Rule of Civil Procedure
12(b)(6). (DE 154). The issues raised are ripe for ruling.
For the reasons that follow, this court denies
petitioner's motion to vacate and motion to supplement
and grants the government's motion to dismiss.
April 18, 2012, petitioner pleaded guilty to the following:
conspiracy to distribute and possess with the intent to
distribute five kilograms or more of cocaine and 280 grams or
more of cocaine base (crack), in violation of 21 U.S.C.
§ 846 (Count One); distribution of a quantity of cocaine
base (crack), in violation of 21 U.S.C. § 841(a)(1)
(Count Two); distribution of a quantity of cocaine base
(crack) and aiding and abetting, in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2 (Count Three); and
possession with intent to distribute 28 grams or more of
cocaine base (crack) and a quantity of cocaine, in violation
of 21 U.S.C. § 841(a)(1) (Count Four).
November 7, 2013, this court sentenced petitioner to 211
months imprisonment on each of Counts One through Four, with
the terms to be served concurrently. Petitioner appealed, and
the Fourth Circuit Court of Appeals affirmed this court's
judgment. See United States v. Rodgers, 595 F.
App'x 196 (4th Cir. 2014) (per curiam). Petitioner did
not file a petition for certiorari with the Supreme Court.
December 28, 2015, petitioner filed the instant motion to
vacate pursuant to 28 U.S.C. § 2255, arguing that: 1)
this court erred by denying his motion to suppress; 2) in
light of the Supreme Court's decision in Johnson v.
United States, 135 S.Ct. 2551 (2015), he no longer
qualifies as a career offender; 3) his guilty plea was not
knowingly and voluntarily entered; 4) trial counsel provided
ineffective assistance of counsel by advising him to enter
into a guilty plea; 5) appellate counsel provided ineffective
assistance of counsel by failing to raise certain arguments
and file a petition for rehearing en banc; 6) trial counsel
provided ineffective assistance of counsel at the suppression
hearing; and 7) this court erred in calculating his advisory
motion to dismiss, filed on February 16, 2016, the government
argues that petitioner's § 2255 motion should be
dismissed for failure to state a claim upon which relief can
be granted. On March 14, 2016, petitioner filed a motion to
supplement, seeking to add a claim of prosecutorial
misconduct. On June 14, 2017, the government filed a response
to petitioner's supplement. On July 3, 2017, petitioner
filed a reply.
7, 2016, this case was stayed pending the Supreme Court's
final decision in Beckles v. United States, No.
15-8544. On March 14, 2017, this court lifted the stay.
Petitioner was directed to show cause, within thirty days,
why his § 2255 motion should not be dismissed in light
of Beckles v. United States, 137 S.Ct. 886 (2017).
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 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 to Vacate
Petitioner's first and third claims were previously
first claim, petitioner contends that this court erred by
denying his motion to suppress. Mot. Vacate Mem. (DE 149-1)
at 8-13. Petitioner argues in his third claim that his guilty