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Robbs v. United States

United States District Court, W.D. North Carolina, Charlotte Division

September 20, 2017

FRANKLIN ROBBS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Frank D. Whitney, Chief United States District Judge

         THIS MATTER is before the Court upon Franklin Robbs's pro se Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 4.)

         I. BACKGROUND

         On April 26, 2013, Robbs pled guilty, pursuant to a plea agreement, to one count of conspiracy to commit racketeering, in violation of 18 U.S.C. § 1962(d). Accept. & Entry of Plea, Doc. No. 460.[1] The probation office prepared a Presentence Investigation Report (“PSR”), using the 2013 United States Sentencing Guidelines Manual (“U.S.S.G.”). PSR ¶ 66, Doc. No. 715. The officer determined that Robbs had at least two prior felony convictions of either a crime of violence or a controlled substance offense, including Attempted Robbery (New York), Assault-2nd Degree (Maryland), and Possession With Intent to Sell or Deliver Cocaine (North Carolina), that qualified him as a career offender under U.S.S.G. § 41B.1. Id. at ¶¶ 76, 85-86, 106. Robbs's guideline sentencing range was 151-188 months imprisonment. Id. at ¶¶ 144-45.

         Pursuant to the plea agreement, however, both defense counsel and the Government recommended a sentence of 132 months imprisonment, id. at ¶ 145, which the Court accepted, J., Doc. No. 774. Judgment was entered on March 3, 2014.[2] Id. Robbs did not file a direct appeal.

         On June 24, 2016, Robbs filed a one-page document titled “Petition to Vacate, Set-Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, ” in which he asserts that “the decision in Johnson v. United States, 135 S.Ct. 2551, has affected [Robbs's] Career Offender status, and that this Honorable Court must review the two predicate offenses for proper qualification under the Career Offender provision.” (Mot. to Vacate, Doc. No. 1.) Because the filing did not comply with Rules 2(b) and (c) of the Rules Governing Section 2255 Proceedings for the United States District Courts, see Rule 2, 28 U.S.C. foll. § 2255, the Clerk of Court mailed Robbs a standard § 2255 form to complete, sign under penalty of perjury, and return to the District Court. (Staff Notes, Oct. 3. 2016.)

         On January 1, 2017, Robbs placed a completed standard § 2255 form in the prison mail system. (Am. Mot. to Vacate 14, Doc. No. 4.) It was received and docketed in this Court on January 9, 2017. Robbs raises the following grounds for relief: 1) counsel was ineffective for failing to file a notice of appeal as requested; 2) counsel was ineffective for failing to object to a sentence enhancement based upon Robbs's role in the offense; 3) counsel was ineffective for failing to argue that two of the prior offenses used for career offender status were not valid predicate offenses; 4) Robbs's New York conviction for attempted robbery does not qualify as a predicate offense for career offender status under the sentencing guidelines; and 5) Robbs's Maryland conviction for second-degree assault does not qualify as a predicate offense for career offender status under the sentencing guidelines.[3] (Am. Mot. to Vacate 4-10.)

         This Court notified Robbs that his § 2255 Motion appeared to be untimely under 28 U.S.C. § 2255(f)(1) and provided him an opportunity to explain why it should not be dismissed as such. (Doc. No. 5.) After reviewing Robbs's Response (Doc. No. 6), the Court hereby clarifies that it construes the one-page document filed on June 24, 2016 (Doc. No. 1) as a 28 U.S.C. § 2255 Motion to Vacate and the document filed on January 1, 2017 (Doc. No. 4) as an amended § 2255 Motion to Vacate.

         II. STANDARD OF REVIEW

         Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings in the United States District Court, sentencing courts are directed to examine motions to vacate, along with “any attached exhibits and the record of prior proceedings” in order to determine whether a petitioner is entitled to any relief. If it plainly appears that the petitioner is not entitled to relief, the court must dismiss the motion. See id. After conducting its initial review, the Court finds that the claims presented in the Motion to Vacate can be resolved based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

         III. DISCUSSION

         A. Johnson Claim

         In Johnson v. United States, made retroactive to cases on collateral review by Welch v. United States, 136 S.Ct. 1257 (2016), the Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), is unconstitutionally vague under the Due Process Clause of the Fifth Amendment. 135 S.Ct. at 2558. The ACCA provides for a mandatory minimum sentence of 15 years in prison for a defendant convicted of being a felon in possession of a firearm, 18 U.S.C. § 922(g), if the defendant has at least three prior convictions for serious drug offenses or violent felonies. See § 924(e)(1). “Violent felony” is defined in the ACCA as “any crime punishable by imprisonment for a term exceeding one year” that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B) (emphasis added).

         The italicized closing words of § 924(e)(2)(B) constitute the ACCA's residual clause. Johnson, 135 S.Ct. at 2556. Thus, a defendant who was sentenced under the ACCA to a mandatory minimum term in prison based on a prior conviction that satisfies only the residual clause of the ...


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