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Astrop v. United States

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

July 21, 2017

CHRIS DOLAN ASTROP, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE

         This cause comes before the Court on petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. [DE 59]. The government has moved to dismiss the petition, [DE 69], and the matter is ripe for disposition. Petitioner also filed a motion for copies of certain transcripts at no cost, [DE 62], to which the government responded. For the reasons discussed below, the government's motion to dismiss is granted and petitioner's § 2255 motion is dismissed and motion for copies is denied.

         BACKGROUND

         On April 24, 2012, petitioner pleaded guilty, pursuant to a written agreement, to one count of conspiracy to possess with intent to distribute and to distribute 100 grams or more of heroin in violation of 21 U.S.C. § 846. [DE 37]. On August 20, 2012, petitioner was sentenced to 120 months' imprisonment, with credit for time served. [DE 46]. Petitioner did not appeal his conviction.

         On April 26, 2016, petitioner filed this petition under 18 U.S.C. § 2255. [DE 59]. Petitioner argues in this § 2255 motion that his designation as a career offender under the Federal Sentencing Guidelines was improper due to the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), which struck the "residual clause" of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii). Id. The government responded, arguing that the motion should be dismissed for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. [DE 69].

         The matter was stayed pending a decision by the Fourth Circuit Court of Appeals in In Re: Hubbard, No. 15-276 (4th Cir. 2016). [DE 71 ]. That stay was lifted on April 27, 2017, and the parties were directed to file supplemental briefs addressing the effect of Beckles v. United States, 137 S.Ct. 886 (2017), on petitioner's claims. [DE 82]. The parties thereafter filed supplemental responses. [DE 83, 84].

         DISCUSSION

         "To survive a motion to dismiss pursuant to Rule 12(b)(6), [petitioner's] '[f]actual allegations must be enough to raise a right to relief above the speculative level, ' thereby 'nudg[ing] their claims across the line from conceivable to plausible."' Aziz v. Alcolac Inc., 658 F.3d 388, 391 (4th Cir. 2011) (quoting BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Under § 2255(b), [u]nless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief, the court must grant a prompt hearing to determine the issues and make findings of fact and conclusions of law with respect thereto." United States v. Thomas, 627 F.3d 534, 539 (4th Cir. 2010) (internal quotation omitted). However, "vague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation by the District Court." United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013) (quoting United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).

         The Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), provides for enhanced punishments for those offenders who have three prior convictions for violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). A violent felony is defined by the statute as any crime punishable by more than one year imprisonment that

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another;

18 U.S.C. § 924(e)(2)(B). In Johnson, the Supreme Court addressed the constitutionality of the residual clause of ACCA's violent felony definition, which defines a violent felony to include one which "otherwise involves that presents a serious potential risk of physical injury to another." 135 S.Ct. 2557. The Court held that the residual clause is unconstitutionally vague and that to increase a defendant's sentence under that clause denies the defendant due process of law. Id. at 2557. In Welch v. United States, the Supreme Court held that Johnson announced a substantive rule that applies retroactively on collateral review. 136 S.Ct. 1257 (2016).

         However, and in contrast to the ACCA, the Supreme Court has held that the Federal Sentencing Guidelines, including U.S.S.G. § 4B1.2(a)'s residual clause, are not subject to vagueness challenges under the Due Process Clause. Beckles v. United States, 137 S.Ct. 886, 894 (2017) ("Because they merely guide the district courts' discretion, the Guidelines are not amenable to a vagueness challenge."). Moreover, the Fourth Circuit Court of Appeals has recognized that a challenge to the application of the sentencing guidelines is not cognizable in a § 2255 proceeding. United States v. Foote, 784 F.3d 931, 931 (4th Cir. 2015), cert, denied 135 S.Ct. 2850 (2015) ("[B]y its terms, § 2255 does not allow for a court's consideration and correction of every alleged sentencing error."). A petitioner seeking relief under § 2255 must make one of four types of arguments:

that the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the court was without jurisdiction to impose such sentence, or [3] that the sentence was in excess of the maximum authorized ...

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