United States District Court, W.D. North Carolina, Charlotte Division
D. WHITNEY, DISTRICT JUDGE.
MATTER is before the Court upon the Government's
Motion to Dismiss Petitioner Jasmon Delshon Mackey's pro
se Motion to Vacate, Set Aside or Correct Sentence, filed
pursuant to 28 U.S.C. § 2255. (Doc. No. 5.)
2, 2012, Mackey entered a guilty to plea to conspiracy to
possess with intent to distribute 280 or more grams of crack
cocaine in violation of 21 U.S.C. §§ 841(a)(1).
Accept. & Entry of Plea, Doc. No. 91. As part of
Mackey's plea agreement, the government agreed to dismiss
another charge, and the parties agreed that the amount of
crack cocaine reasonably foreseeable to Mackey was 297.2
grams, that he should receive an offense-level reduction for
acceptance of responsibility, and that either side could
argue for a departure or variance at sentencing. Am. Plea
Agrmt. ¶ 7, Doc. No. 90. Mackey agreed to waive the
right to challenge his conviction and sentence on appeal or
in any post-conviction proceeding, except for claims of
ineffective assistance of counsel or prosecutorial
misconduct. Id. at ¶¶ 18-19.
federal probation officer prepared a Presentence
Investigation Report (“PSR”) using the 2012
United States Sentencing Guidelines (“U.S.S.G.”)
Manual. PSR, Doc. No. 129. The officer calculated a base
offense level of 32, based on the amount of crack cocaine
attributed to Mackey. Id. at ¶ 30. With a
three-level reduction for acceptance of responsibility,
Mackey's total offense level was 29. Id. at
¶¶ 37-39. The officer found that Mackey had 22
criminal history points, placing him in criminal history
category VI. Id. at ¶¶ 43, 52, 54, 61,
66-67, 68. His advisory sentencing guidelines range was
151-188 months' imprisonment. Id. at ¶ 104.
Court accepted the PSR's calculations but varied downward
and imposed a sentence of 140 months of imprisonment --
below the advisory guidelines range. Judgment, Doc.
No. 206. Judgment was entered in August 2013. Id.
Mackey did not file a direct appeal, but in 2015, he
successfully moved to reduce his sentence under U.S.S.G.
Amendment 782. Doc. No. 267. His sentence was reduced to 130
months' imprisonment. Doc. No. 274.
24, 2016, Mackey filed a Motion to Vacate, Set Aside or
Correct Sentence, pursuant to 28 U.S.C. § 2255,
asserting that he was improperly sentenced based on state
convictions that no longer qualify as crimes of violence.
(Doc. No. 1.) The Government filed the instant Motion to
Dismiss, contending that Mackey's claim is untimely,
waived, procedurally defaulted, and without merit. (Mot. to
Dismiss 1, Doc. No. 5.) Pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), the Court gave
Mackey an opportunity to respond to the Government's
motion (Doc. No. 6), and Mackey did so on January 26, 2017
(Doc. No. 9).
STANDARD OF REVIEW
12(b)(6) of the Federal Rules of Civil Procedure provides for
the dismissal of an action based upon a “failure to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). To state a viable claim for relief
under § 2255, a petitioner must prove that: (1) the
sentence imposed “violat[ed] . . . the Constitution or
laws of the United States;” (2) “the court was
without jurisdiction to impose such a sentence;” or (3)
“the sentence was in excess of the maximum authorized
by law, or is otherwise subject to collateral attack.”
28 U.S.C. § 2255(a). After examining the record in this
matter, the Court finds that the claims presented in
Mackey's § 2255 Motion can be resolved based on the
record and governing case law. See Raines v. United
States, 423 F.2d 526, 529 (4th Cir. 1970).
a federal district court must dismiss any claim brought in a
§ 2255 motion that is filed more than one year after the
date on which the judgment of conviction became final.
See 28 U.S.C. § 2255(f)(1). There is an
exception for claims based on rights newly recognized by the
Supreme Court and made retroactive on collateral review.
§ 2255(f)(3). Mackey asserts that his motion is timely
because it is based on a new rule of constitutional law
recognized by the Supreme Court (Mot. to Vacate 11, Doc. No.
1), in Johnson v. United States, 135 S.Ct. 2551
(2015) (Pet'r's Resp. 1, Doc. No. 9).
Johnson, the Supreme Court held that the residual
clause of the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e), is unconstitutionally vague under
the Due Process Clause of the Fifth Amendment. 135 S.Ct. at
2558. The ACCA provides for a mandatory minimum sentence of
15 years in prison for a defendant convicted of being a felon
in possession of a firearm, 18 U.S.C. § 922(g), if the
defendant has at least three prior convictions for serious
drug offenses or violent felonies. See §
924(e)(1). “Violent felony” is defined in the
ACCA as “any crime punishable by imprisonment for a
term exceeding one year” 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.”
§ 924(e)(2)(B) (emphasis added).
italicized closing words of § 924(e)(2)(B) constitute
the ACCA's residual clause. Johnson, 135 S.Ct.
at 2556. The Court left intact the remainder of the
ACCA's “violent felony” definition, including
the four enumerated offenses and the “force
clause.” Id. at 2563. Thus, a defendant who
was sentenced under the ACCA to a mandatory minimum term in
prison based on a prior conviction that satisfies only the
residual clause of the ACCA's “violent
felony” definition is entitled to relief from his
was not convicted of being a felon in possession of a
firearm, in violation of § 922(g). Thus, his sentences
were not enhanced under the ACCA. Mackey contends, however,
that the holding in Johnson ...