United States District Court, E.D. North Carolina, Eastern Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
Standard of Review
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).
Motion for counsel
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.
Motion to Vacate
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
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, ...