United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
Reidinger United States District Judge.
matter is before the Court on Petitioner's Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. §
2255 [Doc. 1]; Petitioner's Memorandum in Support of
Petitioner's Pro Se Motion to Vacate Sentence under 28
U.S.C. §2255 [Doc. 5]; and the Government's Motion
to Dismiss [Doc. 10].
December 10, 2014, Petitioner pled guilty in this Court to
possession of a firearm by a felon. [Crim. Case No.
1:14-cr-00080-MR-DLH-1 (“CR”), Doc. 18:
Acceptance and Entry of Guilty Plea]. The presentence report
(“PSR”) noted that Petitioner had two prior
convictions that triggered an enhancement to his base offense
level under U.S.S.G. § 2K2.1(a)(2): (1) a 2013 North
Carolina conviction for common law robbery and (2) a 2013
North Carolina conviction for breaking-or-entering. [CR Doc.
25 at ¶¶ 11, 34, 36: PSR]. Based on the §
2K2.1 enhancement, Petitioner faced a Guidelines range of 77
to 96 months. [Id. at ¶ 56]. On June 26, 2015,
before Petitioner was sentenced in this action, the Supreme
Court held in Johnson v. United States that the
residual clause of the Armed Career Criminal Act
(“ACCA”) - which covered any offense that
“otherwise involves conduct that presents a serious
potential risk of physical injury to another” - is
“unconstitutionally vague.” 135 S.Ct. 2551, 2557
(2015). Based on that holding, the Court concluded that
“imposing an increased sentence under the residual
clause ... violates the Constitution's guarantee of due
process.” Id. at 2563.
October 15, 2015, this Court held Petitioner's sentencing
hearing and noted that neither party had filed objections.
[CR Doc. 37 at 3-4: Sent. Tr.]. The Court, however, raised
for the first time the issue of whether Johnson
affected the PSR's recommendation that Petitioner's
prior common law robbery and breaking-or-entering convictions
qualified as crimes of violence under § 2K2.1.
[Id. at 9]. After a short discussion,
Petitioner's counsel objected to the common law robbery
conviction being used as a §2K2.1 predicate offense.
[Id. at 12]. Counsel, however, did not object to the
breaking-or-entering conviction being used. The Court
overruled Petitioner's objection and imposed a sentence
of 90 months. [Id. at 19, 32]. Petitioner appealed,
and the Fourth Circuit Court of Appeals affirmed his
conviction and sentence in an unpublished opinion on April
25, 2016. [CR Doc. 40].
around September 12, 2016, Petitioner filed a pro se
motion to vacate, raising a Johnson claim. [Doc. 1].
The Federal Defender was subsequently appointed to represent
Petitioner on Petitioner's Johnson claim
pursuant to a standing order by this Court. On November 22,
2016, counsel filed a supplemental memorandum in support of
Petitioner's motion to vacate. [Doc. 5]. In the
supplemental memorandum, Petitioner argues that, under
Johnson, his prior convictions for common law
robbery and breaking or entering no longer qualify as
predicates for a base-offense level enhancement under
U.S.S.G. § 2K2.1(a). Petitioner also brings an
ineffective assistance of counsel claim based on
counsel's failure to argue at sentencing that
Petitioner's breaking or entering conviction did not
qualify as a “crime of violence” in light of
Johnson, and based on counsel's failure to seek
a withdrawal of Petitioner's plea agreement or negotiate
an exception to the plea agreement's appeal waiver,
following counsel's failure to research
Johnson's impact on Petitioner's common law
robbery conviction under the guidelines.
March 1, 2017, the Court placed Petitioner's motion in
abeyance pending the outcome of Beckles v. United
States, Supreme Court No. 15-8455, in which petitioner
argued that his career-offender sentence was erroneously
enhanced by an unconstitutionally vague residual clause of
U.S.S.G. § 4B1.2. [Doc. 8]. On March 6, 2017, the
Supreme Court held in Beckles that “the
advisory Guidelines are not subject to vagueness
challenges.” 137 S.Ct. 886, 890 (2017). On May 9, 2017,
the Government filed the pending motion to dismiss, arguing
that Petitioner's Johnson challenge to his
enhanced sentence under U.S.S.G. § 2K2.1(a) has no
validity in light of Beckles. [Doc. 10]. On May 30,
2017, the Court granted the Federal Defender's motion to
withdraw from representation of Petitioner. [Doc. 13]. In the
Court's order, the Court gave Petitioner twenty days to
file a pro se response to the Government's
motion to dismiss. [Id.]. Petitioner has not
responded and the time to do so has passed.
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the motion to vacate can be resolved without an
evidentiary hearing based on the record and governing case
law. See Raines v. United States, 423 F.2d 526, 529
(4th Cir. 1970).
noted, Petitioner challenges his enhanced sentence under
U.S.S.G. § 2K2.1(a), in light of Johnson. In
Beckles, however, the Supreme Court held that
“the advisory Guidelines are not subject to vagueness
challenges.” 137 S.Ct. 886, 890 (2017). Thus, the
holding in Beckles has foreclosed Petitioner's
Johnson claim, as well as his attendant, ineffective
assistance of counsel claims based on counsel's failure
to raise certain Johnson issues at sentencing. The
Court will therefore deny and dismiss the petition and grant
the Government's motion to dismiss.
Court finds that the Petitioner has not made a substantial
showing of a denial of a constitutional right. See
generally 28 U.S.C. § 2253(c)(2); see also
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in
order to satisfy § 2253(c), a “petitioner must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong”) (citing Slack v. McDaniel, 529 U.S.
473, 484-85 (2000)). Petitioner has failed to demonstrate
both that this Court's dispositive procedural rulings are
debatable, and that the Motion to Vacate states a debatable
claim of the denial of a constitutional right. Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000). As a result, the
Court declines to issue a certificate of appealability.
See Rule 11(a), Rules Governing Section 2255
Proceedings for the United States District Courts, 28 U.S.C.
IS, THEREFORE, ORDERED that the Government's
Motion to Dismiss [Doc. 10] is GRANTED, and
Petitioner's Motion to Vacate, Set Aside, or Correct