United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE
cause comes before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. The government has moved to dismiss
petitioner's motion for failure to state a claim.
Fed.R.Civ.P. 12(b)(6). Petitioner has responded to the
government's motion, and the matter is ripe for ruling.
For the reasons that follow, the government's motion is
Johnson, was sentenced to 360 months' imprisonment
following his plea of guilty to charges of armed bank
robbery, using and carrying a firearm during a crime of
violence, and aiding and abetting. 18 U.S.C. §§
2113; 924(c); and 2. [DE 52]. Johnson appealed and his
sentence was affirmed by the court of appeals. [DE 64].
Johnson filed a motion pursuant to 28 U.S.C. § 2255,
which was dismissed. [DE 92]. On June 27, 2016, the court of
appeals granted authorization for Johnson to file a second or
successive § 2255 motion based on Johnson v. United
States, 135 S.Ct. 2551 (2015). The pre-filing
authorization entered by the court of appeals stated that it
permitted consideration of the motion by the district court
in the first instance, and that the one-year limitations
period for filing a. Johnson claim expires on June
26, 2016. [DE 126].
filed a 28 U.S.C. § 2255 motion based on
Johnson on April 17, 2017. [DE 135]. Johnson
contends that the holding in Johnson renders his
§ 924(c) conviction unlawful.
survive a motion to dismiss pursuant to Rule 12(b)(6),
[petitioner's] '[f]actual allegations must be enough
to raise a right to relief above the speculative level, '
thereby 'nudg[ing] their claims across the line from
conceivable to plausible.'" Aziz v. Alcolac
Inc., 658 F.3d 388, 391 (4th Cir. 2011) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). "Under § 2255(b), [u]nless the motion and
files and records of the case conclusively show that the
prisoner is entitled to no relief, the court must grant a
prompt hearing to determine the issues and make findings of
fact and conclusions of law with respect thereto."
United States v. Thomas, 627 F.3d 534, 539 (4th Cir.
2010) (internal quotation omitted).
government in its motion to dismiss first argues that
Johnson's motion to vacate is untimely as it was filed
after the one-year deadline for filing Johnson
motions had expired. However, in light of the Fourth
Circuit's order authorizing this Court to consider
petitioner's motion in the first instance, the Court
deems Johnson's notice of appeal filed on June 13, 2016,
to be a timely-filed § 2255 that has been authorized by
the court of appeals for review in this Court. See
Estelle v. Gamble, 429 U.S. 97, 106 (1976). The Court
construes the motion to vacate at [DE 135] as an amended
§ 2255 motion.
the Court grants the government's motion to dismiss the
§ 2255 motion for failure to state a claim. In
Johnson, the Supreme Court addressed the
constitutionality of the residual clause of the Armed Career
Criminal Act's definition of violent felony, which
defines a violent felony to include one which "otherwise
involves conduct that presents a serious potential risk of
physical injury to another." 135 S.Ct. 2557; 18 U.S.C.
§ 924(e)(2)(B)(ii). The Supreme Court held that the
residual clause is unconstitutionally vague and that to
increase a defendant's sentence under that clause denies
the defendant due process of law. Id. at 2557. In
Welch v. United States, the Supreme Court held that
Johnson announced a substantive rule that applies
retroactively on collateral review. 136 S.Ct. 1257 (2016).
Johnson's § 924(c) conviction was based on his
conviction for armed bank robbery. The Fourth Circuit has
determined that armed bank robbery is a crime of violence
under the force clause of § 924(c), United States v.
McNeal, 818 F.3d 141, 157 (4th Cir. 2016), and thus is
not implicated by the invalidation of § 924(e)'s
residual clause in Johnson. See also United States v.
Polhill, 681 Fed.Appx. 292, 293 (4th Cir. 2017)
("We recently held that a conviction under 18 U.S.C.
§ 2113(a) is a crime of violence under the force clause
of § 924(c)(3). . . . Thus, Polhill's bank robbery
conviction qualified as a predicate crime of violence for his
§ 924(c) conviction."). Johnson has therefore
failed to state a plausible claim upon which relief could be
granted, and his motion to vacate is properly
certificate of appealability shall not issue absent "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). A petitioner
satisfies this standard by demonstrating that reasonable
jurists would find that an assessment of the constitutional
claims is debatable and that any dispositive procedural
ruling dismissing such claims is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000);
Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). As
reasonable jurists would not find this Court's dismissal
of petitioner's § 2255 motion debatable, a
certificate of appealability is DENIED.
foregoing reasons, petitioner's amended motion to vacate
[DE 135] is DISMISSED and the government's motion to
dismiss [DE 139] is ...