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Trinidad v. United States

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

August 24, 2017

PABLO TRINIDAD, JR., 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 77). Also before the court is the government's motion to dismiss, made pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 87). The issues raised are ripe for ruling. For the reasons that follow this court dismisses petitioner's motion to vacate and grants the government's motion to dismiss.

         BACKGROUND

         On October 13, 2011, petitioner pleaded guilty, pursuant to a written plea agreement, to conspiracy to distribute and posses 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 1), and felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924 (count 8). (DE30). On August 7, 2012, this court sentenced petitioner to 252 months' imprisonment, concurrent on both counts; however, petitioner's sentence was later reduced to 189 months' imprisonment, concurrent on both counts (DE 51, 65). Petitioner did not appeal his judgment.

         On May 2, 2016, petitioner filed the instant motion to vacate under 28 U.S.C. § 2255, arguing that in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson”), he is no longer an armed career offender under the Armed Career Criminal Act (“ACCA”) . In its motion to dismiss, the government argues that petitioner's § 2255 motion should be dismissed for failure to state a claim upon which relief can be granted.

         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 the 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 for counsel

         Petitioner has requested counsel to be appointed. (DE 77). There is no constitutional right to counsel in section 2255 proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions[.]”); United States v. Williamson, 706 F.3d 405, 416 (4th Cir. 2013). Here, petitioner previously was appointed counsel pursuant to Standing Order 15-SO-02, and the court granted counsel's motion to withdraw. Petitioner has failed to demonstrate circumstances warranting appointment again of counsel. Consequently, petitioner's motion for appointment of counsel must be denied.

         2. Motion to Vacate

         Petitioner argues that in light of Johnson, he is no longer an armed career criminal. (See DE 77). In particular, petitioner contends that Johnson requires this court to vacate his sentence because his New York first-degree robbery convictions can no longer serve as qualifying predicates under either the ACCA or under the Sentencing Guidelines. (Id.).

         Petitioner's claim fails as a matter of law because 1) the removal of enhancement as an armed career criminal or as a career offender would not change petitioner's guideline range and 2) petitioner was sentenced under the ACCA and the Sentencing Guidelines, the latter of which “are not amenable to a vagueness challenge, ” Beckles v. United States, ...


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