United States District Court, W.D. North Carolina, Charlotte Division
C. MULLEN, UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Petitioner's
Motion to Vacate pursuant to 28 U.S.C. § 2255 seeking
relief pursuant to Johnson v. United States, 135
S.Ct. 2551 (2015), (Doc. No. 1), appointed counsel's
supporting memorandum, (Doc. No. 3), the Government's
Motion to Dismiss, (Doc. No. 7), and counsel's reply,
(Doc. No. 8). Also pending is Respondent's motion for an
extension of time to file the response, (Doc. No. 6), which
is now moot. For the reasons that follow, the motion to
vacate will be dismissed with prejudice as procedurally
was charged in the underlying criminal case with three counts
of possession of a firearm by a convicted felon and one count
of possession of ammunition by a convicted felon in violation
of 18 U.S.C. §§ 922(g)(1), 924(a)(1)(B), 924(e)(1).
(3:91-cr-33, Doc. No. 1 at 1). The counts are: Count (1),
possession of a silver handgun on or about January 1, 1991;
Count (2), possession of a silver handgun on or about January
30, 1991; Count (3), possession of a shotgun on or about
February 2, 1991; and Count (4), possession of 12-guage
shotgun shells on or about February 13, 1991. (Id.,
Doc. No. 13 at 277-78).
Government presented evidence at trial regarding several
witnesses' “traumatic encounters” with
... First, with respect to count one, Necolle Watts testified
that on January 1, 1991, Samuels lured her to a motel room at
the Cricket Inn in Charlotte, North Carolina. After she
arrived at the motel, Samuels held a silver handgun to her
head and threatened her several times, repeatedly forcing her
to perform oral sex and once forcing her to ingest drugs.
Second, Loretta Ardery testified that on January 30, 1991,
Samuels called her and asked for a ride from his room at the
Econo Lodge in Charlotte. Ardery testified that she drove to
the motel and went to Samuels' room to help him carry his
suitcases, when Samuels grabbed her, forced her into the
room, and attempted to tie her up while repeatedly pointing a
silver handgun at her face. Third, Seymore James,
Samuels' uncle, testified that on February 2, 1991,
Samuels drove to James' house and asked James to keep his
shotgun for him. James took the shotgun and kept it in his
house until he turned the weapon over to the police on
February 14, 1991. Finally, several Charlotte police officers
testified that they found shotgun shells in a dresser drawer
at Samuels' residence on February 13, 1991. The officers
seized the shotgun shells during a search of Samuels'
residence, pursuant to a search warrant issued by a
magistrate of the state of North Carolina.
United States v. Samuels, 970 F.2d 1312, 1313 (4th
jury found Petitioner guilty of all counts. (3:91-cr-33, Doc.
No. 1 at 3).
Presentence Investigation Report (“PSR”)
calculated Petitioner's offense level as 34 under the
armed career criminal provision of U.S. Sentencing Guidelines
§ 4B1.4. (3:91-cr-33, Doc. No. 11). The Government filed
objections arguing that, although Petitioner qualified for
sentencing as an armed career criminal, he should be
sentenced instead as a “career offender” pursuant
to Guidelines § 4B1.1, which carries a higher sentencing
range. (Id.); Samuels, 970 F.2d at 1313.
The Court found that the base offense level for Count (1) is
27, plus a two-level increase for restraining a victim, and a
four-level increase for displaying a firearm. (Id.,
Doc. No. 15 at 29). However, the Court found that a two-level
increase for obstruction of justice does not apply, so the
total offense level for Count (1) is 33, and the total
offense level after accounting for the multiple count
adjustment, is 34. (Id., Doc. No. 15 at 35);
(Id., Doc. No. 11 at ¶¶ 30-31). The
criminal history section scores 12 criminal history points
and a criminal history category of V. (Id., Doc. No.
11 at ¶¶ 35-38). The PSR lists the predicate
offenses for enhanced sentencing as one conviction for felony
riot (85CRS96134), and two convictions for possession with
intent to sell and deliver cocaine (86CRS3744 and 86CRS3749).
(Id., Doc. No. 11 at ¶¶ 40). The Court
agreed with the Government that Petitioner is a career
offender, so the offense level is 37 and the criminal history
category is VI, with a resulting sentencing range of 360
months to life imprisonment. (Id., Doc. No. 15 at
36, 37, 49). The Court sentenced Petitioner to 540
months' imprisonment followed by five years of supervised
release. See (Id., Doc. No. 1 at 4);
(Id., Doc. No. 15 at 95-96).
argued on direct appeal that the Court erred by: (1)
rejecting his motion to sever the four charges; (2) denying
his motion to suppress; and (3) improperly enhancing his
sentence. The Fourth Circuit affirmed the conviction but
reversed the career offender sentence because the underlying
felon-in-possession offense is not a “crime of
violence” for purposes of the career offender
guideline, § 4B1.1. It found, however that Petitioner
does qualify as an armed career criminal based on his prior
convictions for felony riot and two drug offenses. It
remanded for resentencing as an armed career criminal
pursuant to Guidelines § 4B1.4, with an offense level of
34 and criminal history category of VI, and an imprisonment
range of 262 to 327 months. Samuels, 970 F.2d at
remand, the Court relied on the armed career criminal
calculation pursuant to the Fourth Circuit's mandate.
However, it found that an upward departure was warranted on
two independent grounds. It found by a preponderance of the
evidence that: (1) the Government established rapes, sexual
assaults, and other acts of violence reflecting a
“violent propensity of unbelievable magnitude;”
and (2) the criminal history “does not consider the
extremely, extraordinarily serious nature of the underlying
criminal conduct.” (3:91-cr-33, Doc. No. 18 at 29-30).
It therefore increased the offense level 35 and arrived at a
guidelines imprisonment range of 292 to 365 months.
(Id., Doc. No. 1 at 5-6). The Court sentenced
Petitioner at the top of that range to 365 months'
imprisonment. (Id., Doc. No. 18 at 33). The Fourth
Circuit affirmed. United States v. Samuels, 14 F.3d
598 (4th Cir. 1994).
filed a pro se petition for writ of audita querela
on August 3, 2009, arguing that he should be resentenced
without the armed career criminal enhancement pursuant to
United States Sentencing Guidelines Amendment 709.
(3:91-cr-33, Doc. No. 2). The Court dismissed the petition as
frivolous on January 14, 2010. The Fourth Circuit affirmed on
May 4, 2010, finding that the Court did not err by denying
the petition because alternative remedies exist. United
States v. Samuels, 376 Fed.Appx. 291 (4th Cir. 2010).
filed his pro se § 2255 motion to vacate on
June 20, 2016, arguing that his ACCA sentence is illegal
pursuant to Johnson v. United States, 135 S.Ct. 2551
(2015). (Doc. No. 1). Counsel filed a supporting memorandum
on Petitioner's behalf arguing that Petitioner's
365-month ACCA sentence exceeds the statutory maximum because
Petitioner's prior conviction for North Carolina felony
riot is no longer a “violent felony” pursuant to
Johnson, that his sentence should be reduced to 120
months, and he should be immediately released. (Doc. No. 3).
Government filed a Response and Motion to Dismiss arguing
that Petitioner's Johnson claim is procedurally
defaulted and meritless. That is, Petitioner failed to raise
his sentencing argument on direct appeal and his procedural
default of the claim is not excused, the claim is meritless
because North Carolina felony riot is a “violent
felony” under ACCA's use-of-force clause, and that
Petitioner's overall sentence was not affected by his
classification as an armed career criminal. (Doc. No. 7).
Specifically, the Respondent argues that Petitioner's
offense characteristics independently yield a total offense
level of 34, resulting in a sentencing range of 262 to 327
months' imprisonment before application of the upward
departure, and the removal of the ACCA enhancement ...