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Rodgers v. United States

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

July 17, 2017

TORRICK JOHNTRELLE RODGERS, 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 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.

         BACKGROUND

         On 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).

         On 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.

         On 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 guideline range.

         In its 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.

         On July 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).

         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

         a. Petitioner's first and third claims were previously litigated.

         In his 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 ...


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