United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, 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 (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. For the reasons that follow this court
dismisses petitioner's motion to vacate and grants the
government's motion to dismiss.
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).
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.
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 to Vacate
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.).
Petitioner's Johnson claim is untimely.
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. § 2255(f). ...