United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
REIDINGER UNITED STATES DISTRICT JUDGE
MATTER is before the Court on the Petitioner's
Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. § 2255 [Doc. 1], as supplemented [Doc. 3], and
the Government's Motion to Dismiss [Doc. 7]. Petitioner
is represented by Joshua Carpenter of the Federal Defenders
of Western North Carolina.
August 5, 2008, the Petitioner Rodney Lamar Self was charged
with possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). [Criminal Case No.
2:08-cr-00028 (“CR”), Doc. 1]. The Petitioner
pleaded guilty to the charge pursuant to a written plea
agreement. [CR Doc. 12 at ¶ 1]. Based on his eight prior
convictions for armed robbery in Georgia, the Court found the
Petitioner to be an armed career criminal pursuant to 18
U.S.C. § 924(e) and sentenced him to a term of 180
months' imprisonment. [CR Doc. 25]. The Petitioner
appealed, and the Fourth Circuit affirmed this Court's
judgment. United States v. Self, 393 F.App'x 47
(4th Cir. 2010).
August 2011, the Petitioner filed a motion to vacate pursuant
to 28 U.S.C. § 2255 in which he raised, among other
things, various ineffective assistance of counsel claims.
This Court denied and dismissed the motion to vacate in
September 2011. [Civil Case No. 2:11-cv-00030, Doc. 5].
December 2013, the Petitioner filed a second motion to
vacate, challenging his armed career criminal designation on
the grounds that a Georgia state court had vacated his armed
robbery convictions. [See Civil Case No.
2:13-cv-00049, Doc. 4 at 4-5]. This Court denied the motion
to vacate as untimely under § 2255(f)(4), finding that
the Petitioner did not act with due diligence in pursuing the
vacatur of his eight Georgia armed robbery convictions.
[Id., Doc. 10 at 8-12 (order on motion for
reconsideration of denial of motion to vacate)].
receiving authorization from the Fourth Circuit to file a
successive habeas petition, the Petitioner filed the present
motion to vacate his sentence under 28 U.S.C. § 2255,
arguing that his sentence was improperly enhanced under the
ACCA in light of Johnson v. United States, 135 S.Ct.
2551 (2015). [Doc. 1]. The Petitioner, through counsel, filed
a supplement to the motion to vacate on July 20, 2016. [Doc.
3]. On October 31, 2016, the Government filed a motion to
dismiss the Petitioner's motion, contending that the
Petitioner waived his right to seek collateral review of his
sentence, except on bases not asserted in his motion; that
the Petitioner's claim is procedurally defaulted; and
that, in any event, Georgia armed robbery still qualifies as
a violent felony for purposes of the ACCA. [Doc. 7]. On
November 4, 2016, the Petitioner filed a response to the
Government's motion to dismiss. [Doc. 8]. Having been
fully briefed, this matter is ripe for disposition.
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the argument presented by the Petitioner can be
resolved without an evidentiary hearing based on the record
and governing case law. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
ACCA provides for a mandatory minimum term of fifteen
years' imprisonment for any defendant who violates 18
U.S.C. § 922(g) and who has three previous convictions
for a “violent felony” or a “serious drug
offense.” 18 U.S.C. § 924(e)(1). When the
Petitioner was sentenced, a “violent felony” was
defined to include any crime punishable by a term of
imprisonment exceeding one year that:
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another [the
“force clause”]; or
(ii) is burglary, arson, or extortion, involves use of
explosives [the “enumerated offense clause”], or
otherwise involves conduct that presents a serious potential
risk of physical injury ...