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, made pursuant to 28
U.S.C. § 2255 (DE 37). Also before the court is the
government's motion to dismiss, made pursuant to Federal
Rule of Civil Procedure 12(b)(6). (DE 41). 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.
13, 2014, petitioner pleaded guilty, pursuant to a written
plea agreement, to conspiracy to possession with the intent
to distribute a quantity of cocaine, in violation of 21
U.S.C. § 841(a)(1). On October 7, 2014, this court
sentenced petitioner to 180 months' imprisonment.
Petitioner did not appeal his judgment.
8, 2017, petitioner filed the instant motion to vacate under
28 U.S.C. § 2255, arguing that in light of the Supreme
Court's decision in Mathis v. United States, 136
S.Ct. 2243 (2016), he is no longer a career offender. 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 “to take over the
petition for relief” because “petitioner is a
laymen at the law.” (DE 37 at 1). 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).
Petitioner has failed to demonstrate circumstances warranting
the appointment of counsel. Consequently, petitioner's
motion for appointment of counsel must be denied.
Motion to Vacate
sole claim, petitioner argues that in light of
Mathis, he is no longer a career offender.
(See DE 37 at 2). In particular, petitioner contends
that Mathis requires this court to vacate his
sentence because his North Carolina drug convictions can no
longer serve as career offender predicates. (Id.).
Petitioner's Mathis ...