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AS-Sadiq v. United States

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

August 24, 2017

RUHULLAH AS-SADIQ, 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 under 28 U.S.C. § 2255 (DE 231). Also before the court is the government's motion to dismiss, made pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 244). The issues raised are ripe for ruling.[1] For the reasons that follow this court dismisses petitioner's motion to vacate and grants the government's motion to dismiss.

         BACKGROUND

         On February 8, 2001, a jury found petitioner guilty of armed bank robbery and aiding in abetting in violation of 18 U.S.C. §§ 2113(a) and (d) (count one), and possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2 (count two). (DE 63). On April 13, 2001, the court set aside its verdict on count two. (DE 74). On June 13, 2001, petitioner was sentenced to a total of 300 months' imprisonment. (DE 84). Petitioner filed several unsuccessful appeals, including a failed § 2255 motion. (See DE 109, 181, 182, 190, and 207).

         On May 1, 2017, petitioner filed the instant motion to vacate and amended 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), he is no longer a career offender. In its motion to dismiss, the government argues that petitioner's § 2255 motion should be dismissed as untimely and as moot.

         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 to Vacate

         Petitioner argues that in light of Johnson, he is no longer a career offender under the Sentencing Guidelines. (See DE 231). In particular, petitioner contends this court must vacate his sentence because his armed bank robbery and narcotic offenses do not qualify as predicates for career offender purposes. (Id.).

         a. Petitioner's Johnson claim is untimely.

         Petitioner's Johnson claim is untimely, and therefore, it must be dismissed. A one-year period of limitation applies to § 2255 motions. See 28 U.S.C. ยง 2255(f). ...


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